Ruling
Title: | Connelly -v- An Bord Pleanala & ors | Neutral Citation: | [2018] IESC 36 | Supreme Court Record Number: | 13/17 | High Court Record Number: | 2014 488 JR | Date of Delivery: | 30/07/2018 | Court: | Supreme Court | Composition of Court: | Clarke C.J., O'Donnell Donal J., Dunne J., O'Malley Iseult J., Finlay Geoghegan J. | Rulingby: | Clarke C.J. | Status: | Approved | Result: | Other | | |
THE SUPREME COURT
Appeal No: S:AP:IE:2017:000013
Record No: 2014/488JR
Clarke C.J.O’Donnell J.Dunne J.O’Malley J.Finlay Geoghegan J.Between/Kathleen Connelly Applicant/Respondent And
An Bord Pleanála Respondent/Appellant And
Clare County Council
McMahon Finn Wind Acquisitions Ltd Notice Parties Ruling of the Court (ex tempore) on the Final Order and on Costs delivered the 30thJuly, 2018 by Clarke C.J.1. I propose to deal first with the substantive order which the Court should make. As noted in the judgment in this case one of the matters on which the Court required further submissions from counsel was as to whether, and if so in what way, the planning application which was under challenge in these proceedings should be remitted back to the Board. All parties were agreed that the matter should be remitted back. There was, perhaps, some difference of emphasis between the parties as to the terms on or manner in which that remittal should take place.2. The Court is anxious to minimise the risk of further disputes between the parties arising from the process which the Board follows hereafter. At the same time the Court is mindful of the fact that, by being overly prescriptive, the Court might make matters worse rather than better.3. On balance the Court has come to the view that the appropriate form of order to make should be an order remitting the matter back to the Board to determine the planning application concerned in accordance with law as interpreted in the judgment of this Court.4. However, in making that general order, the Court had regard to and wishes to note that there was no challenge to the process which took place before the Board up to the point when, as a result of the Inspector’s Report, the Board decided to seek further information and a natura impact statement. The Board is clearly entitled to take that fact into account in deciding what procedures it requires to follow hereafter.5. Furthermore, the Court notes that there was some suggestion that different considerations may apply today than applied at the time when the Board made its original decision in this matter. The Court is not in a position to comment one way or the other as to whether there have been any such changes or as to their materiality or as to the effect which any such changed circumstances might have on the procedures which the Board needs to follow now. These are matters to be considered by the Board when the matter is remitted back to it and nothing in this ruling should be taken as indicating a view one way or the other as to whether, and if so in what way, the Board should deal with any potentially changed circumstances.6. On the question of costs the Court would wish to emphasise strongly that it is important for parties generally to recall that the starting point for a consideration of costs in any case must be the result. Ultimately Ms. Connelly won the case and successfully resisted the appeal. It is neither necessary nor appropriate, in the context of costs, to attempt to parse and analyse in detail all of the issues which may have been canvassed in the course of proceedings or appeals and identify the number of issues on which one or other party might be said to have succeed in whole or in part. Rather the overall approach, identified inVeolia Waterand confirmed on many occasions since, is that the starting point has to be to decide whether the plaintiff or applicant has to come to court to achieve something which they could not otherwise have achieved or whether a defendant or respondent had to come to court to resist a claim found to be unmeritorious. The applicant in this case clearly falls into the category of a party who had to come to court in order successfully to have the permission granted quashed.7. What theVeoliajurisprudence suggests, however, is two things. First it is important to discourage parties from, as it were, throwing the kitchen sink into every case thus significantly increasing the costs and the amount of court time and resources which require to be deployed in resolving the case. Just because a party turns out to have one good point does not justify raising a large number of unmeritorious points.8. However, that proposition needs to be qualified by reference to the fact that an otherwise successful party should not be deprived of full costs unless it can be shown that it is clear that the raising of unmeritorious points added materially to the overall cost of the proceedings. In making that assessment it will rarely be appropriate to attempt either a very precise calculation of the extent to which costs may have been increased or, indeed, an overly meticulous approach to identifying the precise issues or variations on issues, which were canvassed. To take that approach would be counterproductive in that it would turn every costs application into a major further hearing resulting in even more costs. In that context it is worth noting that the hearing this morning took over an hour.9. Rather a broad brush approach should be adopted to identify whether, and if so to what general extent, it can be said that it is clear that significant areas of the case, adding materially to the cost, were run and lost.10. Applying that approach to the facts of this case the Court feels that it cannot ignore the fact that there were a number of significant issues raised (not least those connected to the EIA) which must undoubtedly have added materially to the costs of the High Court and added somewhat to the costs in this Court and on which Ms. Connelly failed. But at the same time the Court has to acknowledge that Ms. Connelly succeeded in the proceedings in the High Court as she obtained the only actual relief sought being to quash the planning permission and also succeeded on the appeal. It would be totally counterproductive to attempt to now ask the High Court judge to assess costs on the basis of the issues on which Ms. Connelly ultimately succeeded by comparison with those on which she has ultimately failed. Rather it is appropriate that the Court should do the best it can in all the circumstances and therefore the Court proposes to award Ms. Connelly 75% of the costs of both the High Court and of the appeal to this Court.11. Two final matters remain. The first concerns the costs of the application seeking a certificate to permit an appeal to the Court of Appeal which was made in the High Court after that court had delivered judgment. While the High Court refused that certificate it is now clear that there were significant issues of importance which the Board was entitled to pursue and that on some of those issues the Board has succeeded. In those circumstances the Court does not feel that Ms. Connelly should obtain any of the costs associated with resisting the application for a certificate for leave to appeal which was made in the High Court.12. Finally a question has arisen concerning the costs of the filing by Ms. Connelly of a respondent’s notice opposing the Board’s application for leave to appeal to this Court. In that context it is important to emphasise that the respondent’s notice in the leave to appeal process before this Court does two things. First it sets out the position of the respondent on whether leave to appeal should be granted. But second and equally importantly, that notice specifies the grounds on which the appeal will be opposed in the event that leave is given.13. In the Court’s view the filing of a respondent’s notice in a case where leave to appeal is granted should ordinarily, and in the absence of exceptional circumstances, form part of the costs of the appeal to be dealt with in the same way as the costs of the appeal generally. The Court does not see that there are any exceptional circumstances in this case to warrant departing from that procedure.14. In summary, therefore, the Court will grant the applicant 75% of the costs of the proceedings in the High Court and the appeal in this Court (with the costs of the appeal in this Court to include the costs of filing the respondent’s notice) but will make no order in respect of the costs of the application for a certificate in the High Court.15. The Court should add that neither of the notice parties suggested that they should obtain costs and no party sought costs against them. In the circumstances there will be no order as to costs in that regard. |
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