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Cite as:  IESC 31
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Judgment Title: Applications by Coffey & others v Environmental Protection Agency & anor
Neutral Citation:  IESC 31
Supreme Court Record Number: 451, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462, 464, & 498/2012
High Court Record Number: 2012 293 MCA, 2012 295 MCA, 2012 296 MCA, 2012 297 MCA, 2012 298 MCA
2012 299 MCA, 2012 301 MCA, 2012 302 MCA, 2012 303 MCA, 2012 303 MCA 2012 305 MCA, 2012 300 MCA & 2012 389 MCA
Date of Delivery: 25/06/2013
Court: Supreme Court
Composition of Court: Denham C.J., Fennelly J., McKechnie J.
Judgment by: Denham C.J.
Status of Judgment: Approved
THE SUPREME COURT
Appeals No. 451, 453, 454, 455,
456, 457, 458, 459,
460,461, 462, 464,
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
Environmental Protection Agency
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:-
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:-
(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:
(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’.
‘(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  ECR 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  OJ C226/16. In his judgment for that Court making the order for reference ( UKSC 57,  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  IESC 66,  2 IR 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.”
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.”
(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.”
11. The orders of the High Court were as follows. From Hogan J. on the 28th August, 2012:-
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.”
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.”
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.
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:-
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.”