An Taisce, the conservation charity, has issued a call to arms asking people to object to the Government’s plans to introduce “unlawful, undemocratic, and unfair” caps on legal costs for judicial review challenges.
The heritage and environmental charity said the Government is “seeking to dramatically erode the public right of access to justice via the courts”. The organisation, which receives some State funding for non-advocacy matters, said a narrative has formed against the use of judicial review by individuals and environmental non-governmental organisations (eNGOs).
“In all our time in An Taisce, this is one of the biggest threats to environmental protection that we have ever faced,” the agency said in a statement on its website.
“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 said, adding that the changes would lead to “environmental harm”.
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Organisations and members of the public can challenge public decisions by invoking the High Court’s judicial review mechanism, which involves judges testing whether a decision is legally sound. An individual court applicant must prove they are affected in some way by the decision they seek to challenge, while an NGO that has been promoting relevant environmental protection for a year is not required to prove such interest.
Under current provisions, if an NGO, civil society group or individual is successful in a judicial review, the unsuccessful public authority will generally pay the winner’s legal costs. If the challenger loses, they only have to pay their own costs, while the winning public authority still has to pay its costs. An Taisce says this removes the risk of bankruptcy for applicants.
In early December, the Department of Climate, Energy and the Environment published a public consultation on the regulation of costs payable to successful applicants in environmental judicial reviews.
According to An Taisce, the Government’s proposal would limit the costs environmental challengers could recover to only a fraction of their total legal costs. If the new rules are introduced, the agency claims, a court applicant could face bills of more than €100,000 even when successful in their judicial review.
Lawyers would be prevented from taking on cases on a conditional (no win, no fee) basis, An Taisce said, as an applicant would recover only a fraction of the hours they billed.
An Taisce itself has taken several High Court judicial reviews citing environmental concerns, including an ongoing challenge arguing the Government’s nitrates action plan is too weak and a case against permission for a Glanbia cheese factory in Co Kilkenny, which was dismissed by the Supreme Court in 2022.
An Taisce said the process has been “very problematic and unfair”, and the consultation “was buried in the very busy Christmas period”. The charity said it has asked the department multiple times to extend the deadline beyond this Thursday.
An Taisce said the “huge legal uncertainty and additional litigation” surrounding the proposals will “delay rather than expedite the delivery of the critical infrastructure that we very much need”.
Malcolm Byrne, a Fianna Fáil TD for the Wicklow-Wexford constituency, criticised the statement from An Taisce. He said the charity “is an important voice but seems to have lost track of the common good”.
“We need homes for people, we need critical infrastructure built,” Mr Byrne said. “I’d rather hear all those who spend their time objecting to housing and transport and energy provision come up with solutions. What is being proposed is about putting the common good first and ensuring a rebalancing of rights.”
In a statement, the Department of Climate, Energy and the Environment said the proposal to reduce legal costs is one of several key initiatives to deliver on the Government’s commitment to improving the delivery of essential public infrastructure.
“The objective of the proposal is to bring greater predictability and proportionality to the State’s legal costs in environmental judicial reviews. It is not to limit access to justice or constrain the right of individuals or communities to challenge decisions,” a department spokesperson said.
It said primary legislation providing a scale of maximum costs for lawyers representing applicants in judicial reviews has already been passed.
“This consultation relates solely to the secondary legislation necessary to implement that provision and sets out the maximum amounts that lawyers representing parties to judicial reviews will be able to recover from the State.”
A normal public consultation period is four weeks, while an additional two weeks have been factored into this consultation, the spokesperson added.
