Village Residents Association Ltd. v. An Bord Pleanala

Factual and Procedural Background

On 30th April 1999, the first named Respondent (the Board), on appeal by the second named Respondent (Company B), granted permission for the change of use of part of the ground floor of existing premises adjoining the Village Inn, Upper Patrick Street, The City, from a hotel facility to a restaurant with a drive-through facility for the sale of hot food for consumption off the premises, subject to conditions. The Applicant, incorporated on 24th June 1999 as a company limited by guarantee representing members of the local community concerned with the preservation and protection of local amenities, initiated judicial review proceedings challenging the Board's decision. The Applicant sought leave to apply for relief including an order of Certiorari to quash the Board's decision on the basis that the Board did not give adequate reasons for granting permission, particularly regarding an alleged material contravention of the development plan.

The application for leave was heard over three days in October 1999 before Judge Geoghegan, who granted leave on one ground related to the adequacy of reasons given by the Board. Company B challenged the Applicant's locus standi during the hearing. The freehold owner of the premises, a private individual, is not a party to the proceedings and has commenced development in accordance with the Board’s decision. Two applications are before the Court: Company B’s application seeking security for costs from the Applicant, and the Applicant’s application seeking a pre-emptive costs order, exemption from furnishing security for costs, and an order for costs incurred to date.

Legal Issues Presented

1. Whether the Court has jurisdiction to grant a pre-emptive costs order protecting the Applicant from liability for costs to other parties in these proceedings.
2. Whether the Applicant should be required to provide security for costs to Company B under Section 390 of the Companies Act, 1963.
3. Whether an order should be made in relation to the reserved costs from the previous interlocutory stage of the proceedings.

Arguments of the Parties

Applicant's Arguments

• The Court has jurisdiction to grant a pre-emptive costs order analogous to the English High Court’s jurisdiction recognized in R. -v- Lord Chancellor, ex p, CPAG.
• The case involves a public interest challenge warranting protection from adverse costs orders.
• The Applicant should not be required to provide security for costs, as this would stifle a legitimate claim and the Applicant possesses special circumstances.
• The Applicant seeks costs incurred to date against the Board and Company B jointly and severally.

Company B's Arguments

• The Applicant should provide security for costs pursuant to Section 390 of the Companies Act, 1963, as the Applicant is unlikely to be able to discharge a costs order at the conclusion of proceedings.
• The provision of security for costs may be a quid pro quo for the Applicant’s locus standi.
• The Applicant’s challenge does not raise issues of general public importance and does not meet the criteria established for pre-emptive costs orders.

The Board's Position

• The Board did not contest the existence of jurisdiction for pre-emptive costs orders but did not support the Applicant’s entitlement to such an order in this case.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by considering the Applicant’s entitlement to a pre-emptive costs order, noting that such orders are exceptional and typically confined to public interest challenges involving issues of general public importance where the Applicant has no private interest. The Court found that the Applicant’s members have a private interest in the outcome and that the issue granted leave did not raise a sufficiently immediate question of general public importance. Furthermore, the Court did not have sufficient appreciation of the merits to justify such an order and rejected the notion that Company B, a private company, should be penalised by such an order.

Regarding security for costs, the Court acknowledged the accepted criteria under Section 390 of the Companies Act, 1963, including the presumption that a plaintiff unlikely to pay costs should provide security unless special circumstances exist. The Court considered the argument that security might be a quid pro quo for locus standi in this context, referring to relevant case law. It rejected all asserted special circumstances, including the claim of public importance, alleged collusion between Company B and the property owner, the Applicant’s substantial grounds, delay, and alleged intent to stifle the claim. The Court found no evidence justifying refusal of security for costs and ordered the Applicant to provide security, with the amount to be quantified by the Master, and stayed further proceedings until security is furnished.

Finally, the Court addressed the reserved costs from the interlocutory application for leave, holding that absent statutory authority or agreement, it had no jurisdiction to determine costs on an interlocutory application at this stage and declined to make any order regarding costs.

Holding and Implications

The Court granted Company B's application for security for costs and dismissed the Applicant's application for a pre-emptive costs order and related relief.

ORDER: The Applicant is ordered to provide security for Company B’s costs of opposing the proceedings. All further proceedings are stayed pending the provision of such security. No order is made regarding the reserved costs from the prior interlocutory application.

The direct effect of this decision is to require the Applicant to secure costs before continuing the judicial review challenge, potentially limiting the Applicant's ability to proceed if members do not finance the security. No new legal precedent was established beyond the Court's application of existing principles to the facts of this case.