A solicitor and president of an environmental organisation has failed to get a High Court order that she be paid the legal costs of an unsuccessful action she took over a waste incinerator.
Even though Michelle Hayes got an order protecting her from having to pay the other side's costs, she also wanted the taxpayer to pay her own costs, Mr Justice Michael Twomey said.
Ms Hayes' law firm stood to financially benefit to the tune of hundreds of thousands of euro if she had won her challenge to the granting of a revised emissions licence by the Environmental Protection Agency (EPA) to Irish Cement, he said.
The licence permits the firm to continue to manufacture cement in Castlemungret, Co Limerick, by replacing the current fossil fuel for the process with co-incineration of waste products.
Judicial review challenges
Ms Hayes, a Limerick solicitor and president of Environmental Trust Ireland, along with Sue Ann Foley, daughter of billionaire JP McManus, failed on all grounds in their judicial review challenges over the revised licence.
Before the main challenge was heard, Ms Hayes and Ms Foley were granted protected costs orders which meant they did not have to pay the EPA's costs if they lost the case. Such orders are a regular feature of environmental challenges on grounds they are brought in the public interest.
However, Ms Hayes then asked that the court also award the costs she had incurred in bringing the case.
Rejecting her application, Mr Justice Twomey said that in bringing the litigation, it was the taxpayer, rather than Ms Hayes, which had to foot the bill for the EPA’s legal costs, even though the EPA won the litigation.
Although Ms. Hayes lost the case, the primary loser, from a financial perspective, is not Ms. Hayes who will end up paying "the likely hundreds of thousands of euro in legal costs of the successful parties".
It is the taxpayer who has to pick up the tab for the very significant legal costs of the EPA for several days in the High Court as well as the legal costs of the Attorney General/Ireland, who she sued as well, he said.
Parties who get protected costs orders are in a privileged position because they have no ‘skin in the game’, in the sense that, unlike all other litigants, they are not at risk of having costs awarded against them, even if they lose the case, he said.
So long as these judicial review cases are required to be taken in the High Court, where costs for a hearing can be €50,000/€100,000 or more, rather than say the District Court, with costs of €500/€1,000, this is a very significant financial privilege, he said.
As well as being the applicant in this case, Ms Hayes' firm represented her. So if she got an order that her own lawyers’ costs be paid for losing the case, this was "in effect an application for Ms. Hayes herself to financially benefit from losing the case," he said.
While the court was highlighting the real-life effects of the order being sought by Ms. Hayes, it should be emphasised that Ms. Hayes is perfectly entitled to make this application, as an applicant and as a solicitor, he said.
It also highlighted that if legal practitioners like Ms. Hayes were, as a general rule, to be paid hundreds of thousands of euro by the taxpayer for bringing unmeritorious environmental/planning cases in the High Court, whether on their own behalf, or on behalf of third-party applicants, the primary winners would be lawyers, all at the expense of the taxpayer, he said.
"While lawyers might not be disappointed with such a scenario, one would imagine that the taxpayer, if it were represented, would not be overly pleased", he said.
The judge rejected her application for her own legal costs over what he described as the “bringing an unmeritorious claim”.
While he would have likely awarded costs against her, under a discretion the court enjoys in relation to frivolous or vexatious claims, there had been no such application from the EPA.
Likewise, there was no such application for costs against her in relation to the hearing of her subsequent application for her own costs of the failed challenge, he said.