#17444 - Admin Law Remedies Costs As A Bar To Jr - Administrative Law: Remedies

COSTS • •Individual runs the risk of losing everything - all their assets are put on the line if they lose. Having to pay the states costs is expensive. However, state does not have unlimited resources and cannot afford to waste money defending itself from unfounded challenges: A balance must be struck between ensuring that deserving applications are not deterred by costs, and protecting the State's resources (taxpayer money) THE INDEMNITY RULE • Core principle of cost law -Unsuccessful party pays their own costs and indemnifies the losing party for the costs they incurred from the process Legal Services Regulation Act 2015 • Activated in Nov. 2010 S. 169 (1)A 'party who is entirely successful in civil proceedings is entitled to be indemnified by the unsuccessful partyUnless the court orders otherwise UNLESS THE COURT ORDERS OTHERWISE? • 1. 2. 3. 4. 5. Exceptions to the indemnity rule Point of law of exceptional public interest Test cases Where applicant, although unsuccessful, has established impropriety by respondent Where the AARHUS convention applies Where costs would cause disproportionate hardship ➢ Judicial immunity - blanket exception rather than a case-law based exception. 1. POINT OF LAW OF EXCEPTIONAL PUBLIC IMPORTANCE ENGLAND: R v Lord Chancellor ex p Child Poverty Action Group This exception will arise where two conditions are present: (i) Public law issues raised that are of general public importance (ii) Where the applicant has no private interest in the outcome. IRELAND: Dunne v Minister for the Environment 2008 Involved the decision to build a motorway which may affect the environment and involved additionally, the demolition of a medieval castle said to be a national monument.The court will exercise this discretion in exceptional cases where the justice of the case so requiresShould not 'discount excessively the normal rule'Pure issues of law of general public importance: and (i) Point of law of exceptional interestNewsworthiness of a case based on its facts does not mean its of general public importanceFacts are irrelevantThe public may have an interest in national monuments and infrastructure, but this background does not directly engage an important legal issue or contention.Sensationalism does not meet the standard of exceptional public interest. (ii)Point of law must have a community wide and not merely sectoral impact. Issues regarding purely local and transitory legal provisions are too limited as to amount to exceptional public interest (iii) • Must affect the interests of the community at large. The quality of the applicant's case While the facts are irrelevant to the question of public importanceThe quality of the case is relevant.The fact they're raising an important issue of legal interpretation is not sufficientIt must be a good quality legal issue being raised. (iv) The legal issue must not be the application of an already-established principleMust be a novel question of lawUnique/ unusual.The meaning or construction of constitutional/ statutory provision that perhaps has never been visited WHAT IS A NOVEL POINT OF LAW? O'Brien v The Clerk of Dail Eireann Involved the question of whether privileges and immunities contained in the Constitution were exceeded'insufficient degree of novelty' will not permit courts to depart from the normal rule'undoubtedly an exceptional jurisdiction'A case involving application of existing principles is not enough to warrant such jurisdiction. Kerins v McGuinness 2017 Involved alleged abuse of parliamentary privileges and raised issues of novelty concerning the legal safeguards available to witnesses who appear before the PAC (Dail public accounts committee)Sufficient Applicant's costs paid by state Norris v AGConstitutionality of incrimination of homosexual acts sufficientSelf interest in the outcome is not a bar not having no costs ordered against you. Fleming v IrelandConstitutionality of EuthanasiaSelf-interest not a bar 2. TEST CASES • • A case which will resolve a issue that will be or is engaged in other cases. Has to be issue of law but doesn't have to be of general and broad public importance - can be an acute question. Rationale? • Applicant is spared costs because of the public benefit of the litigation Troubling point of law is being settled for the State and for others likely to run into the same question. Shackleton v Cork County Council 2007 Raised issues about the proper interpretation of the social and affordable housing requirement in the Planning Act. How do you interpret who is eligible? Doesn't engage the whole community's interest because it's applicable only to those seeking social and affordable housing 1. 'cases about the proper interpretation of the common law, the Constitution or statute law' 2. 'involving the private relations between parties' 3. 'where the circumstances giving rise to those doubts applied in very many cases' In other words, if the circumstances resulting is the question are likely to recur the issue should be resolved even if it is only sectoral!Poor drafting - state should pay costs O'R v DPP 2011 A was awaiting prosecution for an alleged sexual assault and the victim was being prepared to present her evidence by a psychologist. A argued that this amounted to unfair coaching of a witness and sought to test the legality of the whole practice of allowing such preparations.A was unsuccessful in the challenge, but no costs order either wayImportant test case 3. WHERE THE APPLICANT THOUGH UNSUCCESSFUL HAS ESTABLISHED IMPROPRIETY COMMITTED BY THE RESPONDENT • Where the court will order a party to pay the other side's cost as a sort of penalty - don't lose the JR challenge but fukd something up along the wayR successfully defends the challenge but is found guilty of some misconduct or mal administration S. 169 Legal Services Act 2015Court can consider parties' conduct before and during the proceedings when exercising discretion Hanafin v Minister for the Environment 1996 Concerned 1995 divorce referendum.Challenge failed - successfully defended by the stateState guilty of maladministration - made to pay Hanafin's costs Maladministration?Inefficient/ dishonest administration Mismanagement BA v Minister for Justice 2011 Challenged refusal to grant him asylum status on the grounds that it was unreasonableApplicant lost the JR challengeBut the reasoning given by the minister was defectiveDecision can fall short of maladministration serious enough to set it aside but reach a level that justifies a departure from the normal costs rule. ENGLAND R v Bristol Justice ex p Hawkins 1994Hauteur 'discourtesy' Complete refusal to respond to communication Of judges AFTER the challenged hearing - all taken into accountCosts not awarded to the respondent 4. WHERE THE AARHUS CONVENTION APPLIES Waterville'quite possibly the most influential international agreement of its kind in the sphere of international environmental law' THE 1998 AARHUS CONVENTION:Members of the public are entitled to judicially challenge acts of public authorities which relate to the environmentThe procedures for doing so (challenging) should be 'fair, equitable, timely and not prohibitively expensive' And 9.4 EU LAW and AARHUS Directive 2003/35: • 9.4 of the Aarhus convention expressly incorporated into EU law EU law says that there are three categories of JR challenges to planning/ environmental project that should not be prohibitively expensive: Environmental Impact Assessment Directive 2001/92/EU 1. JR challenged to a decision to be assessed under an environmental impact assessment should not be expensive Directive 2003/4/EU 2. Concern access to information about the environment Integrated Pollution Control Directive 2009/1/EC 3. Challenging integrated pollution control licenses. IRELAND and AARHUS European Commission v Ireland In Ireland, JRs involving environmentThe possibility of the unsuccessful party having to pay the successful party's costs infringed the Directive requirement that costs in these challenges must not be prohibitively expensive. LEGISLATIVE RESPONSE • Ireland implemented these directives. Planning and Development Act 2010 s. 33, amending s. 50 B (2) Where litigation involves a challenge to the requirements for: a. An integrated pollution license. b. Planning case involving 'significant environmental effects' for which an impact assessment is required.