Malone v GCHL & Ors (Approved)

Factual and Procedural Background

This opinion concerns a costs application arising from a prior judgment in an enforcement action initiated by the Plaintiff against Company A (the first named Respondent) and the Agency (the second named Respondent) regarding unauthorized developments and waste disposal at a quarry site in County Kildare. The Plaintiff sought multiple reliefs, including an order prohibiting the Agency from processing a waste licence application submitted by Company A. The court in the principal judgment determined that there was no jurisdictional basis for the relief sought against the Agency in relation to that prohibition, resulting in the striking out of that part of the Plaintiff's claim. The enforcement action against Company A continues with other reliefs intact. The current judgment addresses the Agency's application for costs following the principal judgment.

Legal Issues Presented

1. Whether the Agency is entitled to an award of costs in respect of the preliminary application that led to the striking out of the relief sought against it.
2. Whether the default no costs rule under the Environment (Miscellaneous Provisions) Act 2011 ("the 2011 Act") applies or is displaced by exceptions concerning frivolous or vexatious claims or the manner in which proceedings were conducted.
3. The applicability of the Aarhus Convention, particularly Article 9(4), and its interpretative obligation on national procedural law in relation to costs and ensuring costs are "not prohibitively expensive".
4. Whether the relief sought against the Agency constituted an abuse of process and was properly struck out for lack of jurisdiction.

Arguments of the Parties

Agency's Arguments

• The relief sought against the Agency had no jurisdictional basis and was bound to fail, constituting an abuse of process.
• The Agency is entitled to costs under exceptions in section 3(3)(a) and (b) of the 2011 Act, either because the claim was frivolous or vexatious or due to the manner in which the Plaintiff conducted the proceedings.
• The enforcement action falls within the scope of the 2011 Act, which governs costs in civil proceedings relating to certain licences.
• A process of measuring costs is required to ensure compliance with the Aarhus Convention's principle that costs should not be prohibitively expensive (NPE), with reference to relevant case law and UK Civil Procedure Rules guidance.
• The Agency incurred legal costs amounting to €20,250.21 and sought an opportunity for the Plaintiff to provide financial details to assess the reasonableness of a costs order.

Plaintiff's Arguments

• The Plaintiff requested that the court defer ruling on costs until substantive EU law issues raised in the case are adjudicated by an EU court, invoking Article 19(1) TEU.
• The Plaintiff relied on written submissions and an affidavit emphasizing the primacy of EU law over domestic law and alleged failures by the Agency to implement EU legislation and CJEU judgments.
• The Plaintiff referenced procedural rules and case law relating to appeals and costs but did not seek to resist the jurisdictional ruling on the relief against the Agency.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming the principal judgment's determination that the relief sought against the Agency was not appropriate within the statutory enforcement framework and lacked jurisdictional basis, thus was struck out. The Agency argued it should recover costs based on exceptions to the default no costs rule under the 2011 Act, due to either frivolous or vexatious claims or the manner in which the Plaintiff conducted proceedings. The court carefully considered the legislative scheme, including the default costs provisions and their exceptions, and the interpretative obligation arising from the Aarhus Convention to ensure costs are not prohibitively expensive.

In applying these principles, the court distinguished between relief that was incorrect and relief that was unreasonable or indicative of improper conduct. It found that although the relief against the Agency was misconceived and bound to fail, it did not amount to unreasonable behaviour or abuse warranting a costs award against the Plaintiff. The court emphasized that the statutory framework explicitly provides for a default no costs order in such environmental enforcement proceedings, reflecting legislative intent to protect certain categories of litigants.

Consequently, the court declined to disapply the default no costs rule and considered that the process of measuring costs suggested by the Agency was unnecessary. The court also addressed the Plaintiff’s request to defer costs pending EU law adjudication and found it appropriate to determine costs at this stage.

Holding and Implications

The court made no order as to costs in relation to the Agency's application concerning the struck-out relief in the enforcement action. This means that each party bears its own legal costs for this application.

The direct effect is that the Plaintiff is not liable to pay the Agency’s costs arising from the preliminary application. The court’s decision reinforces the statutory default position under the 2011 Act that costs are generally not awarded against unsuccessful parties in certain environmental enforcement proceedings, absent exceptional circumstances. No new precedent altering the established legal framework was created by this decision.