Introduction

Kenny v. University of Dublin Trinity College ([2021] IESC 57) is a landmark decision by the Supreme Court of Ireland that delves into the intersection of national procedural law and European Union (EU) environmental directives, specifically concerning the Non-Privileged Environmental (NPE) principle. The case revolves around Mr. James Kenny's prolonged litigation against Trinity College Dublin and An Bord Pleanála over the development of student accommodation near his residence in Dartry, County Dublin.

Mr. Kenny's primary contention in this appeal was the unfair and prohibitively expensive costs awarded against him by the courts, arguing that these costs should be assessed in compliance with NPE principles derived from the Aarhus Convention and Directive 85/337 as amended. The core issue was whether the Supreme Court should consider NPE principles in reviewing cost orders that had been conclusively determined prior to or after the transposition of the relevant EU directive into Irish law.

Summary of the Judgment

The Supreme Court, led by Ms. Justice Baker, examined two separate appeals by Mr. Kenny concerning cost orders awarded against him in his protracted litigation against Trinity College Dublin. The appeals questioned both the awarding and the taxation of these costs, asserting that they violated NPE principles established under EU law.

After a detailed analysis, the Court concluded that Mr. Kenny's appeals lacked merit. It was determined that the cost orders in question had been finally and conclusively determined under national law, precluding any retroactive application of NPE principles. Moreover, Mr. Kenny failed to properly invoke NPE arguments in the relevant proceedings, rendering his appeals unsuccessful. Consequently, the Supreme Court dismissed both appeals, affirming the integrity of the cost orders established by lower courts.

Analysis

Precedents Cited

The Court extensively referenced several key precedents that shaped its reasoning:

• Article 10a of Directive 85/337/EEC: Incorporated into Irish law through the Planning and Development (Amendment) Act 2010, this article emphasizes that environmental litigation should be fair, equitable, timely, and not prohibitively expensive.
• Aarhus Convention: Particularly Article 9(4), which underpins the NPE principle by promoting public participation in environmental protection without imposing prohibitive costs.
• Klohn v. An Bord Pleanála (Case C-167/17): A seminal CJEU decision that clarified the application of NPE principles, especially concerning the non-retroactivity of these principles in cost assessments.
• Other CJEU cases such as Commission v. Ireland (Case C-427/07) and North East Pylon Pressure Campaign v. An Bord Pleanála (Case C-470/16).

Legal Reasoning

The Supreme Court meticulously dissected the applicability of NPE principles to the cost orders in question. Central to its reasoning was the distinction between final judgments and ongoing proceedings concerning the transposition date of Directive 85/337/EEC (June 25, 2005).

Applying the rationale from Klohn, the Court acknowledged that while NPE principles necessitate cost assessments to prevent prohibitive expenses in ongoing litigation post-transposition, these principles do not retroactively apply to final cost orders established before or independently of the Directive's implementation. Mr. Kenny's attempts to invoke NPE principles were found to be untimely and procedurally flawed, as he had not sufficiently engaged these arguments in earlier stages of the litigation.

Impact

This judgment reinforces the principle of res judicata in Irish law, affirming that final cost orders are impervious to retroactive challenges based on newly invoked EU environmental directives. It delineates the boundaries within which NPE principles can influence cost assessments, limiting their application to ongoing or future proceedings within the Directive's operational framework.

Moreover, the decision underscores the necessity for litigants to proactively incorporate NPE arguments within the procedural context of their claims. The Supreme Court's stance serves as a cautionary tale for parties seeking to leverage EU environmental protections in cost-related appeals post-finalization of judgments.

Complex Concepts Simplified

Conclusion

The Supreme Court of Ireland, in Kenny v. Trinity College Dublin, reaffirmed the sanctity of final cost orders under national law, even in the face of broad EU environmental directives advocating for accessible litigation. While NPE principles play a crucial role in ensuring public participation in environmental matters, this case delineates the procedural boundaries within which these principles operate. Final judgments enjoy the protection of res judicata, thereby preventing their undoing through retrospective application of newly emphasized legal frameworks.

This decision serves as a pivotal reference for future litigants and courts alike, emphasizing the importance of integrating NPE considerations within the appropriate procedural stages of litigation. It also highlights the judiciary's role in balancing national legal finality with evolving international environmental obligations.