[2015] IELCA 7
THE HIGH COURT
2006 477 JR
IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000
BETWEEN
PETER SWEETMAN
APPLICANT
AND
AN BORD PLEANALA
RESPONDENT
AND
IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
AND
CLARE COUNTY COUNCIL
NOTICE PARTY
1. The Applicant’s costs herein are taxed pursuant to Order of the High Court dated 26 October
2007 which provides as follows:“It is Ordered that the second named Respondent do pay to the Applicant 50% of his costs of
the Motion and said Order when taxed and ascertained excluding the costs of the written
submissions
And the Court doth make no Order in relation to the costs of the first named Respondent or the
Notice Party.”
2. The Notice of Motion referred to is dated 7 March 2006 (incorrectly noted as 7 March 2007 in
Order of 26 October 2007) and sought the leave of the Court to:
1.
Apply by way of Judicial Review in relation to a decision of An Bord Pleanala
granting approval for a proposed road development at Ennis County Clare (File
reference PL03. ER2049) which decision was made on the 14th of February 2006.
2.
A declaration that the Applicant is entitled under the provisions of Council
Directive 2003/35/EC (the “Public Participation Directive”) to bring the within
proceedings at a cost that is not prohibitive.
3.
A declaration that the second named Respondent is obliged pursuant to the
provisions of the said Directive to make provision for the Applicant to challenge the
decision at a cost that is not prohibitive and
4.
A declaration that the second named Respondent has failed to properly
implement the provisions of the Public Participation Directive.
3. The decision of the first named Respondent was made under s. 51 of the Roads Act 1993 (as
Amended) and had the effect of approving a road scheme designed to link the N18 Gort Road to
Ennis Information Age Park.
4. The Notice Party, Clare County Council had made the said application for approval.
5. As noted in the Judgment of Clarke J. delivered 26 April 2007, in order to proceed further it
would be necessary for the Applicant to establish a substantial connection with the proceedings
and also substantial grounds for his challenge. Both of these aspects had been put in issue.
6. The chronology of the Pleadings and Affidavits in these Judicial Review proceedings up to the
said Judgment of 26 April 2007, is as follows:
1)
Applicant’s Notice of Motion seeking leave to proceed issued on 26 April 2006 returnable
for 19 June 2006.
2)
Applicant’s Statement of Grounds of Application dated 26 April 2006.
3)
Affidavit of Peter Sweetman, Applicant, sworn and filed on 26 April 2006.
4)
Affidavit of Walter Walsh, Senior Engineer for the Notice Party, sworn 28 July 2006.
5)
Affidavit of Gerard Egan, Senior Administrative Officer, An Bord Pleanala, first named
Respondent sworn and filed on 4 August 2006.
6)
Affidavit of Oonagh Buckley, Principal Officer Planning Section, Department of
Environment Heritage & Local Government on behalf of the second and third named
Respondents, sworn 26 July 2006 and filed on 31 July 2006.
7)
Affidavit of Greg Casey the Applicant’s solicitor sworn and filed on 6 March 2007.
8)
Affidavit of Peter Sweetman sworn and filed on 6 March 2007.
9)
Applicant’s Notice of Motion dated 7 March 2007 seeking an Order for discovery against
the second named Respondent.
10)
Affidavit of Applicant sworn 9 March 2007 grounding the above Motion.
7. Initial Written Legal Submissions
1.
Applicant’s Submissions (undated).
2.
Notice Party’s submissions filed 6 February 2007.
3.
First named Respondent’s submissions filed 13 February 2007.
4.
Second and third named Respondents’ submissions filed 14 February 2007.
5.
Second and third named Respondents’ supplemental submissions dated
26 March 2007.
8. The substantive issues were at hearing before the Court on 27 and 28 March 2007.
9. In consequence of the Court’s Judgment refusing the leave as sought on behalf of the
Applicant, the Court then had to consider outstanding issues namely:
a)
The appropriate Order for costs to be made in the light of the result of the application.
b)
Whether a Certificate should be given so as to permit the Applicant under the provisions
of s. 50 of the Planning and Development Act 2000, to appeal to the Supreme Court;
and/or
c)
Whether it would be appropriate to make a reference, under Article 234 of the EU
Treaty, to the Court of Justice concerning the interpretation of the Directive and its
application in Ireland.1
10. The chronology involved was as follows:
i.
Substantive Judgment delivered 26 April 2007.
ii.
Matter put in list for mention on 23 May 2007 when it was adjourned to enable
the Applicant consider whether to seek a referral to the ECJ.
iii.
Matter listed for 13 June 2007 with a direction that the Applicant notify all
parties of his position by 8 June 2007.
iv.
On 12 June 2007 a letter was sent by the Applicant’s solicitor to all parties
advising that some preliminary issues arose.
v.
On 13 June 2007 the Court directed that by 22 June 2007 the Applicant was to
furnish all parties with a list of issues to be appealed and/or referred to the European
Court; thereafter the Applicant to have two weeks within which to make legal
submissions and all other parties were given a further two weeks to make replying
submissions. The matter was put in the list for mention for 20 July 2007.
vi.
An issues paper was sent by the Applicant’s solicitor, to all parties, on 28 June
2007.
vii.
The Applicant’s written submissions are dated 13 July 2007. On 20 July 2007
the matter was listed for hearing on 5 October 2007 with a direction that replying
submissions be delivered by 15 September 2007.
1
viii.
The replying submissions were delivered as follows-:
a)
From the second and third named Respondents on 13 September 2007;
b)
From the Notice Party on 13 September 2007;
c)
From the first named Respondent on 2 October 2007.
Council Directive 2003/35/EC
11. Finally, an Affidavit of Myles Carey, Acting Senior Executive Officer of the Notice Party was
received.
12. The Order as to costs is dated 26 October 2007 and has been referred to already herein.
13. I will deal with the various items the subject of this ruling in the order in which they appear
in the Applicant’s bill of costs.
14. Items 59 and 62:
(Senior and Junior Counsel’s brief fees on Substantive hearing: €30,000 and €24,000
respectively).
15. I have considered letters from Senior and Junior Counsel dated 6 March and 1 July 2014
respectively, addressed to Harrington & Co., Solicitors now on record for the Applicant and I
have had the benefit of hearing submissions from Mr. Collins, the barrister retained on behalf of
the Applicant herein.
16. Having heard the submissions of Mr. Quann for the second and third named Respondents
and Mr. Collins for the Applicant I ruled that the restriction on the costs recoverable by the
Applicant to 50% necessitated assessment of the Applicant’s costs in their entirety (excluding
the costs of preparation of the Applicant’s submissions) and not merely such costs of the issues
in respect of which the Applicant had been successful.
17. Senior Counsel’s letter of 6 March 2014 refers to the case as “extremely complex and
indeed landmark” and asserts that in 2007 when his fee note was submitted “there was a
different taxation regime” and there was accordingly no necessity to record the hours spent
preparing the case. The hours involved could only be estimated.
18. Senior Counsel sets out, under 9 headings the issues which were dealt with during the
course of the trial and which had to be prepared for in advance, as follows-:
“a)
Whether the applicant had substantial grounds for overturning the decision of An Bord
Pleanala;
b)
Whether Ireland had properly transposed Article 10A of Council Directive 85/337/EEC;
c)
Whether the Irish judicial review system met Ireland’s obligations under this Directive;
d)
Whether or not the Applicant had a substantial interest and locus standi in the
proceedings;
e)
Whether the Irish system of judicial review could meet the European standard of wide
access to justice as required by article 10A of the above Directive;
f)
Whether the pleadings could be amended outside the statutory time limit;
g)
The appropriateness of the “anxious scrutiny” test in the context of a leave application;
h)
Whether the provisions of article 10A had direct effect and could be invoked by the
applicant;
i)
Whether the application itself was out of time.”
19. Senior Counsel makes reference to the documents received by him and the fact that the
application was opposed by three legal teams, two of whom were represented by both Senior
and Junior Counsel. He also refers to the initial Judgment of Mr. Justice Clarke in the case as
having been the subject of much academic discourse. The estimate of time spent in preparation
is put at 50 hours. This estimated time included extensive consultations with Junior Counsel for
the purpose of discussing potential arguments and tactics, and Senior Counsel recalls reading
ECJ Judgments at 6:00 am in his hotel room in Cork prior to the second day of the hearing.
20. Senior Counsel also cites his considerable experience in Planning Law and the fact that while
the costs associated with the Applicant’s written submissions are not recoverable herein, the
brief fee includes the time spent in considering all other parties’ submissions.
21. Finally it is asserted that the fees paid to the State’s Counsel should be considered in the
context of such Counsel being in a totally different position because a) payment was guaranteed
and b) such Counsel would be in receipt of ongoing instructions from their client.
22. Junior Counsel in his letter concurs entirely with the views expressed by Senior Counsel and
with those of Mr. Casey, Solicitor in his statement (undated) and to which I will refer later. The
case is referred to as seminal in both Irish and European Judicial Review law and its exceptional
public importance and novelty is emphasised, including the necessity for a review of the
substantive legality of decisions made pursuant to the directive. Counsel also emphasised that
Senior Counsel was retained “quite latterly in the case”. This involved Junior Counsel in
assisting Senior Counsel in the task of preparing for the case.
23. In the course of the hearing before me Mr. Collins submitted that the overwhelming part of
the substantive Judgement deals with the extent to which the directive had been properly
transposed into Irish Law and whether secondary legislation was required.
24. In this regard it is clear from the Judgement of the Court that the question with which the
Court was concerned was whether, on the basis of the current law in this jurisdiction, a
sufficient form of review was in existence necessary to meet the obligations on Ireland under
the directive and secondly whether the aspect of the directive imposing an obligation to provide
such review is directly effective.
25. However, the Court held that the Applicant’s Statement of Grounds did not raise a challenge
to the adequacy of the type of review provided in Ireland. It confined itself to challenging the
exposure to costs. This finding led the Court to consider whether there were ‘good and
sufficient’ reasons for allowing an amendment of the Applicant’s grounds. This in turn led the
Court to considering, whether substantial grounds in fact existed, before considering whether an
extension of time to facilitate any amendment, was necessary.
26. It is clear from the Judgement that this issue only arose during the course of debate before
the Court.
27. For the reasons detailed in his Judgement Clarke J. held that the Applicant had failed to
establish that there were substantial grounds for the contention that there had been a failure to
properly transpose the directive. On this basis the entire case against the State failed.
28. Having considered the brief and the written submissions of all parties I am satisfied that the
work of both Senior and Junior Counsel was specialised in nature and time intensive in terms of
preparation. This must be reflected in the sums to be assessed by way of brief fees.
29. A further issue in the case concerned a question raised by the Notice Party, Clare County
Council as to when time commenced to run against the Applicant herein in terms of issuing
these Judicial Review proceedings.
30. Finally, Counsel had to prepare for and argue the point concerning whether the Applicant
had a substantial interest and separately, substantial grounds and while the Applicant was held
to meet the substantial interest test he failed on the latter.
31. The brief fee marked by Senior Counsel at €30,000 must be considered in this context. Mr.
Quann had objected to any allowance being made for the costs of briefing Senior Counsel but
having heard the parties’ respective submissions I decided that such fees are recoverable in the
circumstances of this case.
32. Senior Counsel has estimated his preparation time at 50 hours. This would equate to an
hourly rate of €600. This estimate takes into account time spent in extensive consultations with
Junior Counsel. Mr. Collins has also referred to this in his letter. I think this situation arose out
of the late briefing of Senior Counsel on behalf of the Applicant. Initially it was intended by the
Applicant’s solicitor to brief Junior Counsel only. In the course of the taxation hearing Mr.
Collins made reference to a long discussion with Senior Counsel while driving to Cork for the
initial substantive hearing. In my view discussions such as appear to have taken place between
Counsel are not consultations which may, if directed by Counsel, be taken into account
separately pursuant to Order 99 Rule 37 (30) RSC. The discussions which took place between
Counsel are not factors to be taken into account, in my view. Such discussions constitute the
normal discourse which no doubt takes place between colleagues who are jointly briefed to
represent a client. Counsel hold themselves out all times as possessing the necessary expertise
and skills required to represent the client and there is no doubt that this was the situation in the
instant case. In reality and as intimated by Mr. Collins, these discussions were designed to
facilitate the briefing of Senior Counsel in light of the lateness of receipt of the brief by him.
The solicitor’s state of health may also have been a factor in play.
33. The time spent by Senior Counsel in considering the written submissions of the other parties
must, of course, be taken into account.
34. I think it is also appropriate to take into account the different position of the Applicant’s
Counsel to that of State Counsel in the sense of the onus resting with the Applicant to show
substantial grounds for review. The novelty asserted, however, was of equal relevance to all
Counsel.
35. Arising out of the Court’s substantive decision, remaining questions arose in the context of
the costs of the application and whether in the circumstances of this case, the Applicant should
receive a Certificate for leave to appeal to the Supreme Court. This latter aspect was not
ultimately pursued before the Court. Counsel for the Applicant prepared an issue paper,
pursuant to the directions of the Court and for which Junior Counsel’s fee of €2000 arises at
item 79 of the bill. In addition the costs associated with the lodgement of written submissions
in relation to this issue, are charged at items 80 to 84 including a fee of €2700 in relation to
Junior Counsel’s drafting fee. These submissions also dealt with whether a Certificate for leave
to appeal should be granted.
36. Finally, in relation to the argument on costs, both Senior and Junior Counsel (not the same
Junior Counsel who held the brief in the substantive issue) have marked brief fees of €4000 and
€2700 respectively, at items 92 and 95 of the bill.
37. By way of comparator with the brief fee, for the substantive hearing, marked by the
Applicant’s Senior Counsel, Mr. Quann has advised that Senior Counsel representing the second
and third named Respondents marked €7500 on the brief. He asserts that as the Applicant’s
Junior Counsel was heavily involved at all stages I should allow a similar brief fee to each Senior
and Junior Counsel in the sum of €9000 and refresher fees of €2700 to each.
38. Having regard to the nature of this case and the extent of the work in respect of which I
have had the benefit of hearing submissions from Mr. Collins I am satisfied that Mr. Quann’s
general approach to the assessment of these fees is correct. In my view the extent of the work
mandates the measurement of fees of €11,000 in regard to each brief fee and taking into
account the nature of the application.
39. In my view this case can only carry the allowance of one set of brief fees. The second
hearing which relates to the costs issue carries a refresher fee only. Mr. Quann accepts that, in
addition, fees are allowable to Junior Counsel for drafting written submissions (see item 82) and
he proposed €2000 in this regard with €1500 by way of refresher fee in relation to the costs
issue, allowable to one Counsel only. I cannot see any basis for allowing sums in excess of
those proposed on behalf of the State. I allow €500 at item 79 in respect of the issues paper
drafted by Counsel. This allowance takes into account the submissions fee allowed at item 82.
40. My assessment of the substantive brief fees at €11,000 for each Counsel would equate to
about 36.5 hours work time for each at €300 per hour. This takes into account that separate
fees have, in particular, been allowed in regard to other aspects of Junior Counsel’s work and no
account may be taken of the work associated with drafting the initial written submissions or the
inter Counsel discussions.
41. It may be considered ironic that in circumstances where the Applicant was advancing the
proposition that he should not be exposed to paying State costs which are prohibitive in nature,
the brief fees marked by his own Senior Counsel on the substantive hearing are in fact about
double the cumulative fees marked by Senior Counsel. Mr. Collins advised me that, in fact, the
Applicant had only a contingent liability for his own legal costs, in the event of the Court
awarding costs to him. On this basis, I understand that none of the fees claimed in this bill of
costs have been discharged by the Applicant.
The Instructions Fee
42. I am conscious of the fact that at all relevant times during the currency of these
proceedings, Mr. Casey Solicitor who was then representing the Applicant was in very poor
health. He is now no longer practising as a solicitor. The solicitor now representing the
Applicant, through Mr. Collins, has undertaken to file a Notice of Change of Solicitor. My
Certificate of Taxation cannot be issued until this is done.
43. There is a dearth of information on the solicitor’s file as to the work actually carried out by
Mr. Casey. He has however provided a Statement to me but was not in a position to attend at
the taxation hearing.
44. This Statement, while it provides a historical background to the Application, does not set out
in any detail the actual work involved. It seems clear therefrom that both the Applicant and Mr.
Casey were contemplating an application of this nature for some time. Further, that both the
Applicant and his solicitor had experience and expertise in this area and that there had been
extensive contact with Counsel. The substantive hearing was adjourned on one occasion
because of the solicitor’s illness.
45. I have set out already the various steps in the proceedings and the principal documents filed
and exchanged between the parties. Mr. Quann has proposed that the case was largely Counsel
driven and I think that this is undoubtedly the case, not only because of its nature but also
arising out of the solicitor’s disability.
46. I must assess the fee on the basis of the documentation put forward and the submissions
made on behalf of the parties.
47. The nature and extent of the work carried out is of paramount importance on any
assessment of an instructions fee and this in turn informs the extent to which other factors such
as responsibility, importance and novelty may be taken into account. The fee claimed is
€120,000. Mr. Quann suggests that this sum is untenable and that an allowance of €15,000 is
appropriate.
48. The lack of any hard evidence in relation to work carried out is unfortunate but I cannot go
beyond outlining, as I have done, the general steps taken in these proceedings and assessing
the allowable work which must have been carried out in order to bringing the case to Court in
an efficient manner. Some modest allowance must be made for urgency, importance, novelty
and responsibility, in the circumstances.
49. In my view the instructions fee proposed at €120,000 has no basis in reality. Even if the
solicitor had kept properly documented records of his work, the fact remains that this was
indeed a Counsel led case in terms of drafting of Pleadings, Affidavits, consideration of
submissions and legal research. I do not doubt that the solicitor had many discussions with his
client and indeed with Counsel but, even if documented, the costs of such meetings are likely to
in the nature of being recoverable solely as between Solicitor and Client.
50. Based on the papers considered by me and the parties’ submissions, I allow the following
fees:
1)
For taking instructions and perusing the papers
including decision of first named Respondent and
relevant documents; instructing Counsel; issuing
Notice of Motion, Statement of Grounds and Affidavit
as a matter of urgency:
2)
€5000.00
Considering all replying Affidavits, filing further
Affidavit; considering the parties’ submissions;
preparing Affidavits as to delay:
3)
€3000.00
Briefing Counsel and preparing for substantive
leave application:
€3000.00
4)
Attendance at Court on 27 and 28 March 2007:
€3000.00
5)
Attending Court to take Judgement:
6)
Preparing for and briefing Counsel for costs
€750.00
hearing including perusal of all parties’ written
submissions:
€2000.00
__________
€16,750.00
51. Accordingly I allow €16,750 by way of instructions fees.
Dated the 31st day of July 2015
Declan O’Neill
Taxing Master.