An Taisce urges public to object to proposal to cap legal costs for judicial reviews
Ottoline Spearman
Conservation charity An Taisce is urging the public to object to proposed caps on legal costs for judicial review challenges.
The charity is warning that the changes could severely restrict public access to justice and undermine environmental protection.
“In all our time in An Taisce, this is one of the biggest threats to environmental protection that we have ever faced,” An Taisce said in a statement on its website.
"The Government is seeking to dramatically erode the public right of access to justice via the courts by imposing prohibitively expensive costs on eNGOs and members of civil society who seek to challenge unlawful planning, licencing, or policy decisions."
Organisations and the public can challenge public decisions by invoking the High Court’s judicial review mechanism, reports the Irish Times, which involves judges testing whether a decision is legally sound. An individual applicant needs to prove they are affected by the decision they seek to challenge, but an NGO that has been promoting relevant environmental protection for a year is not required to prove such interest.
Under current rules, applicants who lose a judicial review generally pay only their own legal costs, while those who win can recover their costs from the public authority. This system gives certainty to applicants and allows lawyers to take public-interest cases on a conditional or “no win, no fee” basis.
However, the Government’s proposal would cap the level of legal costs that successful applicants could recover, which could result in bills exceeding €100,000 even if they win.
According to An Taisce, this would deter most public-interest cases and prevent lawyers from taking them on a conditional basis, as the costs the applicant can recover would only cover a fraction of the hours billed by the lawyer. State bodies and developers would face no equivalent limits on their own legal spending.
The charity went on to say that even if most people might never intend to take a judicial review themselves, "it is very important that public authorities know they can be held to account before our courts".
It warned of "public accountability" being "severely compromised" and "quality of decision making" being lowered.
The charity cited a "negative narrative" against judicial reviews recently, whereby those who took them up were blamed for "holding up housing and strategic infrastructure".
An Taisce also criticised the timing of the consultation, which is set to close on January 15th, saying that the Government began the consultation over the Christmas period when many people were too busy to engage with it.
“This unlawful proposal is a significant attack on civil society and public accountability – it should be dropped, and the current system of cost rules should be maintained,” it added, adding that the changes would lead to “environmental harm”.
The charity recommends raising several points in submissions, including the manner in which the Government ran the consultation, how access to justice cannot be prohibitively expensive, and the impact of the proposal and the importance of public interest litigation.
Submissions are due by 5.30pm on Thursday, January 15th and can be sent by email to aarhus@dcee.gov.ie. More information is available on An Taisce's website here.
