Dr. Fred Logue:

It is a probability. In fairness to the courts, they are not forcing people to advance cases while there are cost risks. They are allowing them to have the issue determined as a preliminary matter and to have that finally determined before the case goes on. If there is uncertainty over the costs at the start, people will just make applications either to invalidate the legislation or to find some other remedy. We found with the Heather Hill case there was a parallel case called Enniskerry Alliance v. an Bord Pleanála which almost ended up in a preliminary reference to the European Court of Justice, ECJ, because there was another parallel cost regime called the Environment (Miscellaneous Provisions) Act 2011. Whatever about the scheme, there has to be reasonable predictability of costs.

The issue is not environmental litigation. The issue in Ireland is that our costs are extremely high, and that goes across the board and in all types of legal proceedings. This is not specific to environmental litigation. What is specific to environmental litigation is that the costs cannot be prohibitively expensive and there has to be fair and equitable procedures. That is what is different. What we have is a system that kind of works and has achieved a kind of stability. The fear is, when we do not know what will replace it, it is very hard to imagine something different when we actually have something that is stable and people can use. We also have to remember that costs are so high in Ireland that developers cannot afford to take judicial reviews. If we look at all the developer litigation, they are also relying on cost protection. The only people who can really afford to take these judicial reviews are very big developers, very wealthy people and public bodies or sometimes the State. It benefits everybody actually to have good cost rules that do not prohibit litigation.

The thing to avoid is any kind of uncertainty or any hard parameters that give rise to somebody needing to make an application to have the issue resolved. What we have now today means it is almost automatic. All judicial reviews under the planning and development Act benefit from cost protection regardless of their substance. There is a kind of safeguard in that if it is frivolous or vexatious or if there is contempt of court or some other bad behaviour involved, there is a potential for some kind of a cost order. That rarely, if ever, happens, however, as people are generally quite well represented so they can afford to hire lawyers and the cases are quite good. As Ms Uí Bhroin said, there is a kind of selection bias so that we generally take cases we can win. Obviously, that is how we get paid. There is also a kind of disciplining bias in cost recovery from the public body. I think the committee is well aware of the amount of legal costs the board incurred. That shows up on its annual report. It has to account for why it spent a lot of money losing cases. That has another positive benefit in the board conceding cases early to avoid cost and making good decisions so that it does not have to show a huge legal spend when it loses cases.