Supreme Court dismisses appeals seeking a not prohibitively expensive order for environmental hearings.

THE SUPREME COURT

Appeals No. 451, 453, 454, 455,

456, 457, 458, 459,

460,461, 462, 464, 498/12

Denham C.J.

Fennelly J.

McKechnie J.

In the matter of appeals to find a way that the appellants can take a legal challenge which is protected from prohibitively

expensive legal costs by

Stella Coffey, No2GM Ltd, Derek Banim, Thomas O’Connor, Richard Auler, Theresa Carter, David Notley, Michael Hickey,

Malcolm Noonan, Gavin Lynch, Danny Forde, Enda Kieran and Dymphna Maher

Appellants

and

Environmental Protection Agency

Respondent

and

Teagasc

Notice Party

Judgment delivered the 25th day of June, 2013 by Denham C.J.

1. The thirteen appellants in these appeals brought identical applications ex parte to the High Court seeking an order. In the

proceedings brought on behalf of Stella Coffey the order sought was described as including:-

“A NOT PROHIBITIVELY EXPENSIVE ORDER FOR A HEARING ON NOTICE for a Not Prohibitively Expensive Order (NPE Order)

(whereby all parties that partake in that hearing will bear their own costs, save for the applicant where a limit of less than

the expected own cost is sought).”

In other appeals the order is described shortly as:

“A NOT PROHIBITIVELY EXPENSIVE ORDER (NPE Order).”

2. The appeals to this Court were presented ex parte.

3. There has already been a judgment of this Court in relation to these cases. On the 11th December, 2012 this Court declined the

applications of the thirteen appellants that they be represented on their appeals by Mr. Percy Podger. On the 26th February, 2013, in

a judgment delivered by Fennelly J. this Court gave its reasons for that decision.

4. On the 11th December, 2012, when stating that it would not hear Mr. Percy Podger representing the appellants, the Court

indicated that it would hear any individual appeal that day, or, if any appellant wished, the Court could consider their appeal on the

papers. The appeals were adjourned.

5. After delivery of the judgment in February, a date was given for the hearing of the appeals, being the 14th May, 2013. On the 2nd

May, 2013, the appellants and Mr. Percy Podger appeared in the Management List and all requested that the Court hear the appeals

on the papers. In the special circumstances of the case, the Court decided to consider these appeals on the papers, and the

appellants were so informed by letter of the 8th May, 2013.

6. Each of the thirteen applications to the High Court were identical, and based on identical information, and resulted in judgments of

the High Court. Birmingham J. delivered judgment in Stella Coffey’s application on the 14th August, 2012; Hedigan J. delivered

judgment in the application of Dymphna Maher on the 22nd October, 2012; and Hogan J. delivered judgment in the remaining eleven

applications on the 28th August, 2012.

7. In his judgments of the 28th August, 2012, Hogan J. gave a similar analysis in each case. Thus, for example, in the application of

Richard Auler, the learned High Court judge described the situation thus:-

“(i) On the 25th July, 2012 the Environment Protection Agency (EPA) made a decision in the exercise of the powers

conferred on it by the Genetically Modified Organisms (Deliberate Release) Regulations 2003 (S.I. No. 500 of 2003)

granted a consent to Teagasc, Oak Park, County Carlow to carry out the deliberate release of certain genetically

modified potato lines subject to certain conditions. Mr. Auler objects to this decision of the EPA and he has

indicated to me that he is desirous of challenging the validity of this order, albeit that no proceedings have yet

been commenced by him.

(ii) In this application Mr. Auler was represented by Mr. Percy Podger, who as he freely admitted to me, is neither a

solicitor or counsel. As a concession and a courtesy to the applicant, I permitted Mr. Podger to be heard, but I

express no view as to whether he was lawfully entitled to represent Mr. Auler in this manner, whether by virtue of

being a McKenzie friend or otherwise. This judgment is but one of a number of similar applications moved by Mr.

Podger on the same day and in respect of which he requested separate judgments

(iii) One immediate complication for Mr. Auler is that s. 87(10) of the Environmental Protection Agency Act 1992 (as

inserted by s. 15 of the Protection of the Environment Act 2003) provides that:

‘A person shall not by any application for judicial review or in any other legal proceedings whatsoever

question the validity of a decision of the Agency to grant or refuse a licence or revised licence

(including a decision of it to grant or not to grant such a licence on foot of a review conducted by it of

its own volition) unless the proceedings are instituted within the period of 8 weeks beginning on the

date on which the licence or revised licence is granted or the date on which the decision to refuse or

not to grant the licence or revised licence is made’.

(iv) It would appear therefore that any such legal proceedings would have to be commenced by 18th September,

2012 if the eight week period as defined is to be complied with. I might add that this Court has no jurisdiction to

stay the operation of that eight week period contrary to what was urged on behalf of Mr. Auler. In other words, any

person wishing to challenge the decision of the Agency must do so within the eight weeks and this Court has no

jurisdiction or power to suspend or extend that time period.

(v) This is the general background to the present application which, to say the least, is somewhat unusual. The gist

of the application is that this Court should declare on an ex ante and ex parte basis that Mr. Auler is entitled to

have what is described as a not prohibitively expensive cost order. The background to this application lies in Article

9(4) of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in

Environmental Matters of 25 June 1998 (‘the Aarhus Convention’). This is a United Nations Convention which Ireland

ratified on the 20th June, 2012.

(vi) Article 9(4) of the Aarhus Convention requires that the procedures for challenging the validity of certain

administrative decisions affecting the environment:

‘shall provide adequate and effective remedies, including injunctive relief as appropriate and be fair, equitable, timely

and not prohibitively expensive’.

(vii) Article 9(2) stipulates that members of the public shall have the right to challenge ‘the substantive and procedural

legality of any decision, act or omission subject to the provisions of Article 6’. Article 6 provides that each party to the

Convention:

‘(a) shall apply the provisions of this article with respect to decision on whether to permit proposed activities listed

in annex 1;

(b) shall, in accordance with its national law, also apply the provisions of this article to decisions on proposed

activities not listed in Annex I which may have a significant effect on the environment. To this end, Parties shall

determine whether such a proposed activity is subject to these provisions.’

(viii) I should just observe at this point that it would not appear that the grant of a licence for the release of genetically

modified plants is directly within the scope of Annex 1, a point to which I shall return.

(ix) Mr. Podger appeared to think that an act of ratification was sufficient in itself to make the Aarhus Convention part of

Irish domestic law. This, however, is not the case for two reasons. First, Article 20(3) of the Convention provides that so

far as each State which subsequently ratifies the Convention:

‘. . . shall enter into force on the ninetieth day after the date of deposit by such State or organization of its

instrument of ratification, acceptance, approval or accession’.

(x) This means, therefore, that the Convention will only enter into force so far as Ireland’s international law obligations

are concerned on 17th October 2012.

(xi) Second, the Oireachtas has not (yet) elected to make the Convention part of the domestic law of the State in the

manner required by Article 29.6 of the Constitution.

(xii) It follows, therefore, that insofar as the Convention has binding force as part of the domestic law of this State it is

only by virtue of the force of and within the proper scope of application of European Union law. While the Union ratified

the Convention in February 2005, the preparatory work for the ultimate transposition of the principles of the Convention

are found in Directive 2003/35/EC: see recitals 5 to 10 of that Directive. This is further reflected in the recitals 18 to 22

of Directive 2011/92/EU (‘the 2011 Directive’), which is the consolidated version of the Environmental Impact Assessment

Directive. Article 11(1) provides that Member States shall provide for access:

‘to a review procedure before a court of law or another independent and impartial body established by law to

challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation

provisions of this Directive’.

(xiii) Article 11(4) requires that any such procedure ‘shall be fair, equitable, timely and not prohibitively expensive’.

(xiv) Similar requirements obtain in the case of the consolidated version of the Integrated Pollution Prevention Control

Directive, Directive 2008/1/EC (‘the 2008 Directive’). Recital 26 refers to the ratification of the Aarhus Convention by the

Union and Article 16 is in exactly the same terms as Article 11(1) of the 201 Directive.

(xv) Some consideration of the meaning of the phrase ‘not prohibitively expensive’ was given by the Court of Justice in its

judgment in Case C-427/07 Commission v. Ireland [2009] E.C.R. I-6277 in a judgment which concerned the earlier (pre-

consolidation) versions of both the 2008 Directive and the 2011 Directive. Here the Court of Justice observed (at para.

92) that:

‘As regards the fourth argument concerning the costs of proceedings, it is clear from Article 10a of Directive

85/337, inserted by Article 3(7) of Directive 2003/35, and Article 15a of Directive 96/61, inserted by Article 4(4) of

Directive 2003/35, that the procedures established in the context of those provisions must not be prohibitively

expensive. That covers only the costs arising from participation in such procedures. Such a condition does not

prevent the courts from making an order for costs provided that the amount of those costs complies with that

requirement.’

(xvi) This judgment confirms that the making of a costs order in environmental cases is not in itself precluded by these

provisions, provided that the costs are not prohibitive. This, of course, rather begs the question of what is meant by the

phrase ‘not prohibitively expensive’ and how the application of that phrase is to be judicially evaluated. Some guidance

may well be given on this question by the Court of Justice following the reference pursuant to Article 267 TFEU on this

very question by the UK Supreme Court in Case C-260/11 R. (Edwards) v. Environmental Agency [2011] OJ C226/16. In

his judgment for that Court making the order for reference ([2010] UKSC 57, [2011] 1 W.L.R. 79), Lord Hope examined the

various possible meanings of that phrase, although he suggested that the question of prohibitive cost should be measured

by reference to the standards and monetary values of the average members of the public.

(xvii) Pending a final decision by the Court of Justice, I would rather incline to that view. It would not take much

persuasion to convince me that the traditional taxed costs associated with a complex challenge of this kind would be

likely to be measured at a level which would deter most members of the public from commencing litigation of this kind. It

might accordingly be thought that such a level of costs might be said to be prohibitively expensive in that sense.

(xviii) Nevertheless, enough has been said to demonstrate that the meaning of the phrase ‘not prohibitively expensive’ is

at present uncertain and requires further clarification from the Court of Justice. Moreover, it is not even clear that the

requirements of Article 9(4) of the Aarhus Convention (or, more precisely, the corresponding obligations contained in both

the 2008 Directive and the 2011 Directive) apply to a challenge to the validity of an administrative decision licensing the

release of genetically modified organisms for the purposes of field tests. A further issue is whether the Directives require

that the level of costs must be determined ex ante and capped at some upper limit. All of these matters are at present

uncertain.

(xix) I appreciate that the applicant maintains that he must secure this assurance regarding costs on an ex ante basis

before even commencing proceedings against the Agency, as otherwise he could not take the financial risks associated

with the commencement of litigation. Enough has been said, however, to show that the applicant’s entitlement to the

relief sought and the scope of any such order is uncertain. Even assuming that I had a jurisdiction to make such an order

on an ex ante and ex parte basis, it would be grossly unfair to make a final order of this kind without having given the

Agency and any other notice parties the opportunity to have been heard on the matter.

(xx) Fair procedures and the obligation to hear both sides before any final order affecting the parties can properly be

made is fundamental to the judicial mandate of administering justice in the manner envisaged by Article 34.1 of the

Constitution: see, e.g., DK v. Crowley [2002] IESC 66, [2002] 2 I.R. 712. This principle is equally central to the legal order

established by both Article 6 of the European Convention of Human Rights and that of the European Union. After all,

Article 41(2) of the EU Charter of Fundamental Rights provides that the right to good administration means that every

person has the right ‘to be heard, before any individual measure which would affect him or her adversely is taken’.

(xxi) Since the making of a final order of the kind sought without notice to other parties actually or potentially affected by

such order would infringe fundamental principle of fair procedures as understood by the Constitution, the European

Convention of Human Rights and the EU Charter of the Fundamental Rights, I consider that I have no jurisdiction to make

such an order. For those reasons, I must decline to grant the relief sought.”

8. In the application of Stella Coffey, Birmingham J. delivered judgment on the 14th August, 2013, refusing the application on the

basis of the lack of notice to proposed respondents. He explained his decision of the previous day thus:-

“I stated that I was not prepared to deal with it on an ex parte basis, but that I would give leave to Ms. Coffey to bring a

motion before the High Court on the 22nd August, 2012, being the next scheduled formal vacation sitting.

I explained that I felt and I repeat now, that it would be the antithesis of justice and fair procedures to make an order

that would have possible implications for a potential respondent and notice party on an ex parte basis, behind their back

and without giving them an opportunity to be heard. Mr. Podger indicated that in that event that there was a second

application that he wished to make, which was that there should be a not ‘prohibitively expensive order (NPE Order)’ to

cover the application for such an order i.e. a protective costs order to cover the costs of making an application for such

an order.

I indicated that for the same reason, I was not prepared to make an order which could adversely affect parties that were

not before the court and were not on notice. Orders that offer comfort or advantage to one party in litigation have the

potential to disadvantage opponents, and those who may be affected must have a right to be heard. All and any

applications that Ms. Coffey wished to make or which it was wished should be made on her behalf could be made at the

vacation sitting on the 22nd August, 2012. On that occasion too, the entitlement of Mr. Podger to act as an advocate

could be addressed. In my view, that is also an issue on which the intended respondent and intended notice party are

entitled to be heard. Permitting Mr. Podger to so act would represent a departure from the traditional approach of the

Irish courts and would have implications for the notice party and respondent.

Accordingly, I confirm that Ms. Coffey is being given leave to bring a motion on notice to the proposed respondent, the

Environmental Protection Agency and the proposed notice party Teagasc on the 22nd August, 2012, seeking a so called

not prohibitively expensive order and also seeking an order providing for a protective costs order or a so called not

prohibitively expensive order in relation to the substantive application in relation to costs that she seeks.

Because Ms. Coffey is not legally represented I would simply add this postscript, that it is likely that a court hearing such

an application would want to be told something about the details of the challenge and told something at least of the

grounds which in due course it is intended to advance – that is something to which she and those who advise her should

have regard.”

9. On the 22nd October, 2012, Hedigan J. delivered judgment in the application of Dymphna Maher, in conclusion he stated:-

“(i) No provision is made for this Court to make ex parte an order such as is sought herein. It is not for this Court to

legislate in this way and I will not do so. The correct approach is for the plaintiff to seek to obtain the consent of

those intended defendants or failing that to bring a motion on notice to those parties for a declaration that s. 3

applies.

(ii) The second application today is that, in the event I would refuse the order sought and direct the application be

dealt with by way of notice of motion on the intended defendants, I would make an order that no order for costs

would be awarded against the applicant were the motion to fail. I do not believe I have any jurisdiction to make

such an order. The issue of costs will be for the Judge who hears the motion. I consider that this may well be

unsatisfactory to the applicant as it leaves her in peril of an order for costs of that motion. I cannot accept those

costs would be as high as has been represented today but I am conscious that such as they are they may mount

an insuperable obstacle to the applicant bringing a motion.

(iii) Whilst I am sympathetic to the applicant’s situation in this regard, I am unaware of any legal authority that will

permit me to make such an order. It is very arguable that the absence of some legal provision permitting an

applicant to bring such a motion without exposure to an order for costs acts in such a way as to nullify the State’s

efforts to comply with its obligation to ensure that costs in certain planning matters are not prohibitive. As things

stand, I have no power to change this.

(iv) Both the orders sought must be refused.”

10. Thus, all three learned judges of the High Court refused the ex parte applications and stressed the necessity for notice to be

given of any such application to potential respondents or notice parties. These decisions were made on the basis of fair procedures.

11. The orders of the High Court were as follows. From Hogan J. on the 28th August, 2012:-

“The Court doth refuse to grant a ‘not prohibitively expensive Order’ on an ex parte basis and the Court doth grant short

service if necessary to bring the application by way of Motion on notice to the Respondent [Environmental Protection

Agency] and Notice Party [Teagasc] before the High Court during vacation period”.

12. From Birmingham J. on the 13th August, 2012:-

“And the Court stating that it was not prepared to deal with the application on an ex parte basis.

It is ordered that the applicant be at liberty to bring the application by way of Motion on notice to the Respondent and

Notice Party before the High Court in the Vacation List on the 22nd day of August, 2012.”

13. From Hedigan J. on the 22nd October, 2012:-

“And it appearing that the Applicant wishes to challenge the decision of the Environmental Protection Authority decision

made on 25th July 2012 Re: B/IE/12/01 by way of Judicial Review.

The Court doth refuse the relief sought on an ex parte basis and doth direct that the within Application be made on

notice to all intended Respondents to any Judicial Review Application.

And on the further Application of the Applicant for

a. An Order that the Applicant shall not be liable to pay for the said hearing on notice so directed nor for any legal

costs fees and expenses of her own side nor legal costs of any other party(s) concerning the said Application for a

Not Prohibitively Expensive Order (NPOE Order) and the reliefs sought thereto for the legal challenges she makes in

relation to EPA decision of 25th July 2012 re: B/IE/12/01 that is over and above the threshold set by Article 9 of

the Aarhus Convention i.e. prohibitively expensive and given that said hearing on notice is but proportionately a

small matter that has arisen out of the First Application which concerns a prohibitively expensive case for the

Applicant and the Applicant lacking sufficient resources to take it the Applicant seeks that the costs of the hearing

on notice in their entirety be limited to no more than €100.00 or €0.00

b. An order fixing the maximum euro amount to a figure of no more than no more than €100.00 or €0.00 limit for the

said hearing on notice - to be made for the NPE order - that the Applicant may be subjected to pay in total for any

and all costs to the Applicant re the hearing on notice and inclusive of any and all damages and/or security in the

Applicants intended legal challenges of the EPA decision of 25th July 2012 re: B/IE/12/01 howsoever they may arise

and wherever they may arise and if they arise including but not limited to the said Hearing On Notice

c. Such further or other Order and relief as this Court sees fit so as to do everything necessary to secure ensure

and Judicially protect the above and the full and proper application of the International and European Law in the

matters concerned and inter alia our European and International Law rights invoked here and as otherwise exist and

in anyway applicable the environment concerned in the instant matter in e.g. inclusive but not limited to stop the

clock as of right now suspend time limits for legal challenge and or otherwise extend time limits for legal challenges

thus ensure and secure and Judicially protect parties who are interested to challenge the decision and provide them

with effective remedies in the prevailing climate and circumstances and Judicially protect the environment

concerned by interim injunction the entire latter being particularly sought where the Court has in any way declined

and/or not granted the NPE Orders sought and that such time limits be upheld until the decision of the instant High

Court is not only appealed to the Supreme Court but heard with Decisions and Orders perfected by the Supreme

Court.

The Court doth refuse said Application.”

14. The time limits established by statute were expressly pointed out by the High Court. In relation to the twelve applications brought

in August 2012 express provision was made for further applications within the vacation sittings. Further, it was expressly pointed out

that applications for judicial review had to be commenced before the 18th September, 2012.

15. However, the appellants took no further steps in the High Court. Instead in each of the thirteen cases they appealed to this

Court.

16. The books of appeal in twelve cases were similar. The appeal filed by Dymphna Maher filed extensive grounds of appeal on the

issue of representation by Mr. Percy Podger, which matter has been decided in the judgment of this Court delivered by Fennelly J.

delivered on the 26th February, 2013.

17. In essence, on appeal to this Court are the decisions of the High Court that it would not make a costs order ex parte, without

notice to and in the absence of the proposed respondent and notice party.

Decision

18. I am satisfied that the learned trial judges of the High Court were acting within their jurisdiction, and were correct in law and

under the Constitution in refusing to grant a costs order against parties without notice to those parties and in their absence from the

Court.

19. Fair procedures are at the core of the law and the Constitution. Notice of proceedings, or of orders against a party, are basic to

fair procedures and implicit in the administration of justice. Thus, it was entirely appropriate and correct for the learned High Court

judges to order as they did.

20. There were further orders sought before Hedigan J., but for similar reasons he fell into no error on the orders.

21. I would affirm the judgments and orders of the High Court.

22. Thus, for the reasons given in this judgment, I would dismiss the appeals by the thirteen appellants.

23. Consequently, the substantive issues raised by the appellants were not reached in either the High Court or this Court. However, I

note that the decision R (Edwards) v. Environmental Agency (Case C-260/11) E.C.R. 2013 referred to by Hogan J. has been decided

by the European Court of Justice on the 11th April, 2013, when that court ruled that:-

“49 […]

The requirement, under the fifth paragraph of Article 10a of Council Directive 85/337/EEC of 27 June 1985 on the

assessment of the effects of certain public and private projects on the environment and the fifth paragraph of Article 15a

of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, as amended

by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003, that judicial proceedings should

not be prohibitively expensive means that the persons covered by those provisions should not be prevented from seeking,

or pursuing a claim for, a review by the courts that falls within the scope of those articles by reason of the financial

burden that might arise as a result. Where a national court is called upon to make an order for costs against a member of

the public who is an unsuccessful claimant in an environmental dispute or, more generally, where it is required – as courts

in the United Kingdom may be – to state its views, at an earlier stage of the proceedings, on a possible capping of the

costs for which the unsuccessful party may be liable, it must satisfy itself that that requirement has been complied with,

taking into account both the interest of the person wishing to defend his rights and the public interest in the protection

of the environment.

In the context of that assessment, the national court cannot act solely on the basis of that claimant’s financial situation

but must also carry out an objective analysis of the amount of the costs. It may also take into account the situation of

the parties concerned, whether the claimant has a reasonable prospect of success, the importance of what is at stake

for the claimant and for the protection of the environment, the complexity of the relevant law and procedure, the

potentially frivolous nature of the claim at its various stages, and the existence of a national legal aid scheme or a costs

protection regime.

By contrast, the fact that a claimant has not been deterred, in practice, from asserting his claim is not of itself sufficient

to establish that the proceedings are not prohibitively expensive for him.

Lastly, that assessment cannot be conducted according to different criteria depending on whether it is carried out at the

conclusion of first-instance proceedings, an appeal or a second appeal.”