Although judges have full discretion, the general rule in Irish court cases is that the loser pays the winner's legal costs.
The 2010 Planning Act radically changed this rule for judicial review proceedings relating to decisions that give effect to the Environmental Impact Assessment Directive, the Strategic Environmental Assessment Directive and the Integrated Pollution Prevention and Control Directive. The new default rule for these legal proceedings is that each party must bear its own costs, subject to four limited exceptions. The new costs rule is currently being challenged in proceedings before the Commercial Court.
The 2011 Planning Act extends the costs rule and its exceptions to certain other environmental cases.
The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters lays down rules to promote citizens' involvement in environmental decision making. The convention, and the European rules that implement it, states that the public must be allowed to appeal decisions, and that any appeal procedure must be "fair, equitable, timely and not prohibitively expensive".
The minister stated, on the advice of the attorney general, that in order for Ireland to ratify the convention, it was necessary to:
amend the costs rule introduced by the 2010 Planning Act; and
introduce a provision limiting the costs of environmental court cases.
New costs rule
The 2011 act extends the rule that each party must pay its own costs to environmental court cases where proceedings are instituted to ensure compliance with environmental licences or permits, or in respect of a breach of a licence or permit, if the circumstances have caused (or are likely to cause) damage to the environment.
For example, the new costs rule now applies to injunction proceedings enforcing compliance with the following:
an integrated pollution prevention control licence;
a waste licence;
a waste collection permit;
a trade effluent licence;
a foreshore licence;
a dumping-at-sea permit; and
an exploration licence.
The new rule does not apply to court cases seeking damages for breach of environmental licences or permits (eg, negligence actions for damage to the environment). Nor does the rule apply to proceedings undertaken by a statutory body or a minister.
New exception to the rule
The 2010 Planning Act sets out four limited exceptions to the rule that each party must pay its own legal costs. The court can award costs against a party if:
a claim is frivolous;
a party is in contempt of the court;
a party conducts its case in an unacceptable manner; or
a case is of "exceptional public importance" and is in the interests of justice.
The 2011 act introduces a new exception: the court has discretion to award a party which successfully prosecutes legal proceedings all or a portion of its legal costs from the defendant, if the defendant is at fault.
Exceptions to the rule: environmental court cases
The 2011 act mirrors the existing exceptions for recovering costs in environmental court cases and the new exception. Potential defendants in environmental court cases include state body decision makers, licence/permit holders and facilities operators.
Given that the costs rule introduced by the 2010 Planning Act has led to court challenges, it remains to be seen how the amendment to, and extension of, the new legal costs rule to other environmental cases will be received.