Hunter -v- The Enviromental Protection Agency & Ors

Factual and Procedural Background

The applicant sought costs in relation to two sets of proceedings: (a) judicial review proceedings that concluded following the respondent's concession, and (b) ongoing proceedings under section 160. The judicial review arose from an error by the respondent in granting a waste licence and subsequent attempts to remedy that error. Although the notice party was not alleged to be at fault, it chose to continue the judicial review proceedings after the respondent conceded. This led to multiple court appearances and considerable expense for the applicant before the notice party also conceded.

The section 160 proceedings involved an application by the applicant for a Protective Costs Order (PCO) under the Environmental Miscellaneous Provisions Act 2011. The court had granted the PCO, and the applicant now seeks costs related to that application. The respondent opposed the costs application.

Legal Issues Presented

1. Whether the applicant is entitled to costs for the judicial review proceedings despite the notice party's decision to continue after the respondent conceded.
2. The interpretation and application of section 50B of the Planning and Development Acts 2000 to 2012 concerning costs allocation in these proceedings.
3. Whether the applicant is entitled to costs for the Protective Costs Order application in the ongoing section 160 proceedings.
4. The application of section 3 of the Environmental Miscellaneous Provisions Act 2011 to costs in the section 160 proceedings.

Arguments of the Parties

Notice Party's Arguments

• Section 50B(2A) applies only to pre-litigation actions or omissions; the notice party's conduct during proceedings did not contribute to the applicant obtaining relief.
• The notice party was entitled to maintain the proceedings until it chose to concede.
• The delay in conceding was based on a legitimate concern that the underlying licence might be threatened, which was advised by their legal counsel.
• The notice party's conduct does not amount to improper conduct under section 50B(3)(b) concerning the manner of conducting proceedings.
• Regarding the PCO application, the respondent argued that the applicant cannot recover costs except in exceptional circumstances and that the evidence supporting the PCO was insufficient.
• Subsection (4) concerning exceptional public importance should not apply as the litigation is private.

Applicant's Arguments

• Section 50B(2A) should not be limited to pre-litigation actions or omissions; otherwise, a party could outspend another unfairly, contrary to the Aarhus Convention's access to justice principles.
• If subsection 2A does not apply, then subsection 3(b) applies because the notice party's failure to concede for a year unnecessarily prolonged the proceedings and caused considerable expense.
• The notice party's failure to clarify its concerns promptly caused avoidable costs to the applicant.
• For the PCO application costs, it would be unjust to order costs now in favour of the applicant because the substantive proceedings are ongoing and the applicant might lose, but the costs should be treated as costs in the action.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court interpreted section 50B of the Planning and Development Acts 2000 to 2012 as establishing a default position that each party bears its own costs unless subsections 2A or 3 apply. The court found that subsection 2A applies only to pre-litigation actions or omissions, as subsection 3(b) sufficiently covers conduct during proceedings. The court concluded that the notice party's delay in conceding for one year, despite assurances that the underlying licence was not threatened, constituted conduct that justifies a costs order under subsection 3(b). This delay caused the applicant to incur unnecessary expense, and it would be unjust for the applicant to bear these costs.

Regarding the Protective Costs Order application under the Environmental Miscellaneous Provisions Act 2011, the court reasoned that it would be unjust to award costs in favour of the applicant at this stage because the substantive proceedings remain undecided and the applicant could lose. The court treated the PCO application costs as costs in the action, consistent with the approach to interlocutory applications where neither party is at fault.

Holding and Implications

The court held that the applicant is entitled to recover costs for the judicial review proceedings up to the date of the application, including the costs of the costs application itself, under section 50B(3)(b) due to the notice party's conduct in unnecessarily prolonging the proceedings.

Regarding the Protective Costs Order application, the court held that the costs of that application shall be costs in the action rather than awarded immediately to the applicant, reflecting the ongoing nature of the substantive proceedings and the possibility that the applicant may lose.

The costs application for the judicial review proceedings is granted in favour of the applicant.

The costs of the Protective Costs Order application are to be costs in the action.

No broader legal precedent was established; the decision affects only the costs liabilities of the parties in these proceedings.