High Court dismisses public interest costs claim for unsuccessful plaintiff lacking private interest.

Neutral Citation number: [2007] IEHC 389

THE HIGH COURT

DUBLIN

[2007/1269P]

MICHAEL KAVANAGH

PLAINTIFF

AND

THE GOVERNMENT OF IRELAND, THE MINISTER FOR JUSTICE,

EQUALITY AND LAW REFORM, THE MINISTER FOR HEALTH

AND CHILDREN, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Judgment delivered by Mr. Justice T.C. Smyth on Wednesday, 21st November 2007.

1. Judgment in this case was delivered on 31st July, 2007. The plaintiff was not successful in the action in the High Court and has

lodged an appeal in the Supreme Court.

2. The issue of costs was agreed to be taken separately and a separate court order made referable thereto. I have had the benefit of

lengthy legal submissions (supported by books of authorities) from both parties. I am reluctant to burden all who may be concerned

on appeal with a lengthy or exhaustive ruling on costs.

3. In Grimes -v- Punchestown Developments Co. Ltd. [2002] 4 I.R 515 at page 552 the Supreme Court expressed itself by describing

Order 99 Rule 1 as the "normal rule", i.e. that costs follow the event, unless the Court, for special reasons, otherwise directs. More

recently Clarke J. noted in Veolia Water U.K. plc -v-Fingal County Council [2006] 1. EH 240 that:-

“The overriding starting position should remain that costs should follow the event."

4. The matter was put very specifically at paragraph [25] of the judgment thus:-

"Parties who are required to bring a case to Court in order to secure their rights are, prima facie, entitled to the

reasonable costs of maintaining the proceedings. Parties who successfully defend proceedings are, again prima facie,

entitled to the costs to which they have been put in defending what at the end of the day the Court has found to be

unmeritorious proceedings.”

5. Notwithstanding the several grounds upon which the plaintiff was unsuccessful in the action he invoked Council Directive

2003/35/EEC to resist the application for costs by the successful defendant (not withstanding that no declaratory relief in respect of

the Directive was sought in the proceedings). Further it was sought to argue on the plaintiff's behalf an entitlement to his costs on

the ground of altruism and a non pecuniary interest in the outcome of the proceedings (which runs contra to the averments in his

affidavits), the stated lack of public consultation - again, the Minister for Justice was disposed to and did meet residents at the

conclusion of the Merne proceedings. Notwithstanding protestations of the proceedings being brought in the public interest it is clear

from the plaintiff's own affidavit that his primary stated concern was for his own amenities and those of his family. Even if issues

raised in the proceedings were of public importance the time and method of public engagement had not arisen.

6. In my judgment the Directive provides no reason to depart from the normal rule, that costs follow the event for the following

reasons:-

(a) These proceedings are not within the scope of the Directive. The Directive 2003/35 EEC achieves its objective of

"contributing" to the implementation of the Access to Justice provisions of the Aarhus Convention by the insertion of

Article 10a into Directive 85/337 EEC. It is clear that:-

"The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an

administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior

to recourse to judicial review proceedings where such requirement exists under national law."

(b) There is no reason to consider the plaintiff is a public interest litigant.

The plaintiff has by turn sought to present himself as a person adversely or probably adversely affected by a

development, the details of which are at present not ascertainable with precision. In Dunne -v- Minister for the

Environment [2005] IEHC 77 (High Court, Laffoy J., 18th March, 2005) it was accepted as correct the submission (made

in that case) that the court's discretion to depart from the normal rule that costs follow the event is governed by two

principles: -

(i) That the plaintiff was acting in the public interest in a matter which involved no private personal advantage;

and

(ii) That the issues raised by the proceedings are of sufficient general public importance to warrant an order for

costs being made in his favour.

I am satisfied and find as a fact for the several reasons [and averments in the affidavits] set out in para [27] of the

defendant's submissions that the plaintiff was not a public interest litigant - he had a private interest or advantage in the

outcome of the proceedings. In my judgment the plaintiff has not discharged “the burden”, and “the burden is on the

party making an application to show that the order for costs should not follow the general rule” [per Grimes' case at p.

522].

(c) The Directive's requirement that the proceedings to which it applies should not be “prohibitively expensive” does not

extend to and unsuccessful litigant's exposure to legal costs.

Altogether from the absence of proof that these proceedings were “prohibitively expensive” it seems to me that if the

Directive's terms were to be applied literally in the abstract and devoid of context then every litigant no matter how

vexatious should have carte blanche to engage without risk of basic responsibility - in short a crank's charter.

In this regard I attach considerable significance to the provisions of Article 3(8) of the Convention which provides as

follows:-

“Each party shall ensure that persons exercising their rights in conformity with the provisions of this Convention

shall not be penalised, persecuted or harassed in any way for their involvement. This provision shall not affect the

powers of national courts to award reasonable costs in judicial proceedings.”

In my opinion the Convention is concerned to ensure that the “cost of entry” upon litigation, i.e. court fees are not

prohibitively expensive. Furthermore the mechanism for providing for taxation of costs is a form of assurance that costs

will not be “prohibitively” expensive, if as contended by the plaintiff the Convention is concerned with the fees - other

than court fees - of litigation.

(d) The plaintiff's delay brings him outside the Directive.

7. A plaintiff is entitled to recourse to law to assert or protect a right or to seek to redress a grievance recognised by law and to

accept or reject legal advice. In the instant case the plaintiff persisted in litigation in the face of the legal advice given by Dr. Hogan

S.C. to Mr. Merne and same was an exhibit in an affidavit sworn by Mr. Merne and filed in these proceedings on behalf of the plaintiff.

8. In my judgment the normal rules should be followed and accordingly the costs (including all reserved costs and such costs that are

referable to the voluntary discovery and by direction) shall be payable to the defendants; such costs to be taxed in default of

agreement.