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Cost Protection in Environmental Litigation

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Legislative Cost Protection in Environmental Litigation


Ordinarily in litigation, costs "follow the event" i.e. they are awarded to the party in whose favour the proceedings have been decided. However, there are exceptions to this rule, particularly in environmental proceedings. This deviation stems from the general principle of access to justice in environmental matters established in the Aarhus Convention. This aims to facilitate parties taking action where environmental issues arise, who may otherwise be discouraged from initiating such actions due to the high costs attached.

In 2011, the Environment (Miscellaneous Provisions) Act ("the Act") was enacted to safeguard access to justice in environmental matters. In summary, it provides that in proceedings to which Section 3 of the Act is applicable, each party (including any notice party) shall bear its own costs.
 
Section 3 applies to civil proceedings brought:
 
  1. for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or condition or other requirement attached to a licence, permit, permission, lease or consent specified in subsection (4), or
 
  1. in respect of the contravention of, or the failure to comply with such licence, permit, permission, lease or consent, and where the failure to ensure such compliance with, or enforcement of, such statutory requirement, condition or other requirement referred to in paragraph (a), or such contravention or failure to comply referred to in paragraph (b) has caused, is causing or is likely to cause, damage to the environment.
 
The Act also provides that any party to whom Section 3 applies can, before or during proceedings, apply to the Court for a determination that cost protection applies. This facilitates certainty for applicants by providing comfort, in advance of or during proceedings, that even if they are unsuccessful, an award of costs will not generally be made against them.
 
Despite this Act, it is still not always perfectly clear when cost protection will be found to apply to proceedings, or to what extent. This question was most recently explored by the High Court in O'Connor -v- The County Council of the County of Offaly [2020] IECA 72.
 

Background - O'Connor -v- The County Council of the County of Offaly [2020] IECA 72.
 

On 31 March 2016, Offaly County Council ("the Appellant") granted a renewal of a national waste collection permit to Tag a Bin Limited, the first notice party ("the Notice Party") pursuant to Section 28 of the Waste Management (Collection Permit) Regulations 2007.  The authority of the Appellant to grant the permit arose from its nomination as National Waste Collection Permit Office (‘NWCPO’). The permit authorised the Notice Party to collect 75 categories of waste, including hazardous waste, in every area of the State.
 
The Respondent operated a riding school and equestrian centre on property adjacent to the premises of the Notice Party. The Respondent complained that the Notice Party was bringing waste onto its property, storing it there, and washing down trucks and skips in circumstances where the premises was not authorised as a waste facility. The Respondent argued that this was in breach of the conditions attaching to the waste collection permit. The Respondent complained that he was forced to close the horse-riding school as a consequence of noise, odours and concerns for health and safety.
 

The High Court Proceedings

 
The Respondent issued judicial review proceedings, claiming amongst other points, that the Appellant:
 
  1. acted in breach of Articles 28 and/or 29 of the Waste Management (Collection Permit) Regulations 2007 ("the 2007 Regulations") by granting the permit;
  2. failed to comply with the Habitats Directive by not conducting any screening for appropriate assessment; and
  3. acted ultra vires in purporting to act as the NWCPO when it had not lawfully been nominated to that position.
 
The Respondent also applied for an Order that the cost protection provisions outlined above apply.
 
The High Court (Baker J.) declared that the cost protection provisions did apply to the proceedings. Baker J. referenced the following in her reasoning:
 
  1. The mere fact that the proceedings related to a permit or licence did not bring them within Section 4(1) of the Act. Proceedings in respect of a permit or licence must additionally meet one of the two conditions set out in Section 4(1); be instituted to ensure compliance with or enforcement of a statutory requirement or condition attached to a permit or licence or be in respect of the contravention of, or the failure to comply with, such permit or licence.
  2. Proceedings which seek to ensure compliance with a statutory requirement may come within Section 4, even where there is no permit or licence in issue. The language ‘statutory requirement’ presents a freestanding test. Section 4(1)(a) accordingly applies to proceedings which are either designed to ensure compliance with or enforcement of a statutory requirement or, alternatively, compliance with or enforcement of a condition or other requirement attached to a licence.
  3. The Applicant in this case was seeking to ensure compliance with the statutory requirement that a waste facility be licensed by law and therefore, the proceedings fell within Section 4(1)(a) of the Act.
  4. The Respondent had made out a connection sufficient to meet the prima facie case that damage to the environment is occurring.
  5. The Respondent had established that his financial resources were such as to meet the means test suggested in the case law.
 

The Appeal

 
The Appellant appealed, claiming that:
 
  1. Section 4 of the Act is concerned solely with ‘enforcement proceedings’.  The Respondent was seeking to quash the waste collection permit, not to ensure compliance with any statutory requirement or permission i.e. there was no enforcement involved. Judicial review proceedings are outside the scope of Section 4.
 
  1. There was no evidential basis for the contention that there has been non-compliance with the 2007 Regulations.
 
 

Decision of the Court of Appeal

The Court of Appeal decided as follows:
 
  1. The Judicial Review Argument:
 
The Court found that there was nothing in the Act to suggest that the Oireachtas had intended that cost protection would be limited by reference to the type of proceedings involved. While provision is made for special costs orders in certain judicial review proceedings brought under Section 50B of the Planning and Development Act 2000, it does not follow that judicial review proceedings as a whole are implicitly excluded from the terms of the 2011 Act. Fundamentally, this argument ignores the fact that some actions by way of judicial review do seek enforcement relief; for example mandamus.
 
The central question in determining whether an action is entitled to cost protection under the 2011 Act is not the form of the proceedings, but the object of the claim being advanced. By seeking to quash a permit granted in the past, the applicant was seeking to enforce on an ongoing basis the provision under which the permit was granted in the first place. Baker J noted: “The applicant seeks to impugn the granting of a permit and by that means seeks to ensure compliance with a statutory requirement that there be a valid licence.”
 
  1. The Evidence Argument:
 
It would have been open to the Oireachtas in framing the cost protection provisions to confer a discretion upon the Court. This could have been made conditional by reference to the strength of the underlying claim, the financial position of the applicant for relief or the complexity of the case. Instead, the Oireachtas applied a sharp rule applicable to a specific type of proceedings. Section 3(1) of the 2011 Act imposes a mandate that where the section applies, each party shall bear its own costs. Section 4 defines the proceedings to which Section 3 applies. The Court stated that a case either falls within these provisions, or it does not.
 
The Court clarified that what must be established is a prima facie case i.e. a case where leave for Judicial Review would be granted.
 

Learnings

  1. It cannot be said that Section 3 cost protection does not apply to judicial review proceedings. The key determinant is not the form of the proceedings, but the nature of the relief claimed.
 
  1. Section 4(1)(a) is engaged where proceedings are for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement. The reference in Section 4(1)(a) to a ‘statutory requirement’ is free standing.
 
  1. The applicant must identify some action into the future which it is seeking to be compelled and this must be on foot of a statutory requirement.
 
  1. There is no basis for superimposing on the statutory scheme a requirement that an applicant seeking an order that cost protection applies establish that his case meets anything more than the basic threshold of stateability i.e. the leave test for judicial review.
 
Written by Zoe Richardson and Gráinne O'Callaghan.

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