Introduction

Kemper v An Bord Pleanála & Ors (2022) IEHC 25 is a significant judgment delivered by Mr. Justice Allen of the High Court of Ireland on January 21, 2022. The case revolves around the allocation of legal costs in a judicial review proceeding concerning a decision by An Bord Pleanála ("the Board") to grant Irish Water permission for the Greater Dublin Drainage Project, a substantial strategic infrastructure initiative.

The applicant, Sabrina Joyce Kemper, sought a judicial review on multiple grounds, arguing procedural and substantive flaws in the Board's decision-making process. A critical aspect of the case centered on the costs incurred during these extensive legal proceedings, particularly the contention over whether the Board and the State respondents should bear the entirety or a portion of the applicant's legal costs.

Summary of the Judgment

The High Court extensively examined the matter of costs, ultimately determining that the appellant was entitled to recover 25% of her legal costs from the Board. This decision was influenced by the complexity and length of the proceedings, the number of grounds raised, and the eventual limited success of the applicant's arguments. The State respondents were not held liable for any costs, as the applicant did not succeed in her claims against them.

The judgment underscored that while the applicant succeeded in quashing the Board's decision on a specific ground, the multitude of other unsuccessful arguments she advanced contributed significantly to the overall costs of the proceedings. Consequently, a proportional allocation of costs was deemed appropriate to reflect both the applicant's partial success and the resources expended on the failed aspects of her case.

Analysis

Precedents Cited

The judgment heavily referenced several key precedents, notably:

• Veolia Water: Established a framework for assessing costs in judicial review cases, emphasizing a broad brush approach to determine if significant areas of the case added materially to costs.
• Connelly v. An Bord Pleanála [2018] IESC 36: Highlighted that in planning cases, costs should be awarded based on the overall success of the applicant, without delving into the specifics of each ground.
• Klohn v. An Bord Pleanála, Case C-530/11: Reinforced that costs should be proportional and reflect the increase in expenses due to unmeritorious points raised by the successful party.

These precedents guided the court in determining that while the applicant had succeeded on one ground, the extensive number of unsuccessful arguments warranted a partial allocation of costs.

Legal Reasoning

The court's legal reasoning centered on interpreting Section 50B of the Planning and Development Act, 2000, which governs cost allocations in judicial review proceedings. Under this section:

• Each party typically bears its own costs.
• The court may order a party to pay another's costs if their actions contributed to the other obtaining relief.

Applying the Veolia Water approach, the court assessed whether the applicant's numerous unsuccessful grounds had materially increased the costs for the Board. Given that the applicant only succeeded on a single, narrow ground amidst many failed arguments, the court found it justifiable to award her a proportionate share (25%) of the costs, rather than the full amount or none at all.

The court also addressed the applicant's reliance on EU directives and the Aarhus Convention, concluding that these did not override the provisions of domestic law governing cost allocations.

Impact

This judgment sets a nuanced precedent for future judicial review cases in Ireland, particularly those involving multiple grounds with mixed outcomes. It reinforces the principle that cost allocations should reflect both the success and failure of the applicant's arguments. Parties involved in complex judicial reviews can anticipate that the mere pursuit of viable claims will not necessarily result in full cost recovery if accompanied by numerous unsuccessful points.

Additionally, the decision clarifies the interaction between domestic cost provisions and broader EU legal principles, underscoring the primacy of national statutes in determining cost outcomes.

Complex Concepts Simplified

Conclusion

The Kemper v An Bord Pleanala & Ors (2022) IEHC 25 judgment serves as a critical reference point for the allocation of legal costs in judicial review proceedings involving multiple grounds. It emphasizes the necessity for proportional cost awards that consider both the successes and failures of the applicant's arguments. By adopting a balanced approach, the High Court ensures that cost allocations are fair and reflective of the actual contributions to the court's resources.

This decision not only aligns with established precedents but also provides clarity on the interplay between domestic legislation and EU directives concerning cost allocations. Legal practitioners and parties engaged in similar judicial reviews can draw valuable insights from this judgment when strategizing their litigation approaches and anticipating potential cost implications.