Refusal of costs for failed incinerator challenge ‘attack’ on environmental litigation, says solicitor

A solicitor has said a High Court judge’s refusal to order the Environmental Protection Agency (EPA) to pay her substantial costs for her failed challenge concerning a waste incinerator in Limerick is an “attack” on environmental litigation and on legal professionals.

Michelle Hayes, who is president of Environmental Trust Ireland, made the comments following Mr Justice Michael Twomey’s recent rejection of her costs application.

The incinerator, operated by Irish Cement Limited at Mungret, has been “a cause of great concern” to the residents of Limerick city and surrounding counties, she said.

The case against the EPA and the State, aimed at overturning the EPA’s grant of a revised emissions licence for the facility, was a “David v Goliath” battle.

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She took it, she said, not as a lawyer but solely in her capacity as an “a protector of the environment and human health”, and in the public interest.

In doing so, she had to incur massive financial risk and there was “no conceivable financial benefit” to her.

Her costs included retaining a solicitor and barrister, several expert witnesses, outlays and several other miscellaneous costs, including more than €10,000 for photocopying, she said.

Ms Hayes said she is consulting her legal team concerning “the best way forward”, whether by appealing the decision or involving the European Commission.

Because she brought the case on environmental grounds, she was entitled to a protective costs order (PCO) under the Planning and Development Act 2000, which meant she did not have to pay the costs of the EPA and State if she lost.

On the application of Irish Cement and against her objections, the case was heard in the high-cost Commercial Court in tandem with a separate challenge to the licence by Sue-Ann Foley, daughter of JP McManus, and owner of Islanmore Stud, Croom, Co Limerick.

The hearing lasted seven days and both cases were rejected last October.

Ms Foley, who also had a protective costs order, agreed after the main judgment that no order should be made on costs, meaning each side pays their own.

In his recent judgment refusing Ms Hayes’s costs application, Mr Justice Twomey said it meant she wants the taxpayer to pay her for bringing an “unmeritorious” case.

Those who take environmental/planning cases are in a “privileged position” from a costs perspective, as they are not at risk of having costs awarded against them even if they lose, he said.

So long as these judicial review cases are heard in the High Court, where hearing costs can be €50,000-€100,000 or more, rather than the District Court, with costs of €500-€1,000, “this is a very significant financial privilege”.

He accepted there are “clear policy reasons why this privilege is to be granted in relation to environmental issues”. Ms Hayes, he added, was perfectly entitled to apply for her costs and there was “no suggestion” she took the case for direct financial gain or that she was not motivated by a genuine desire to protect the environment.

There is a “strong public interest” in having court resources carefully managed, he said.

He refused to grant her costs against the EPA on foot of his finding that she abused the privilege of having costs protection by “wasting” court time in arguing certain points not pleaded, although it was not suggested this was done intentionally. The respondents, he further held, were entitled to their costs against her of dealing with issues not pleaded, plus their costs of dealing with the costs hearing.