Legal costs payable by the State to successful applicants in environmental law cases could be slashed by more than two-thirds under a proposed new fees model, a report for the Government has disclosed.
When the model was applied to 45 previous cases, for which the State had paid a total €6.03 million to applicants, the costs were cut to about €1.76 million, meaning savings of €4.26 million.
The savings across the cases ranged from €103 to €455,000, with the disparity reflecting that some were conceded at a very early stage while others went to full hearings lasting up to 10 days and/or involved appeals and references to the Court of Justice of the European Union.
A report analysing the impact of proposed fee scales was prepared on behalf of an interdepartmental group on environmental legal costs. It was sought by the Office of the Planning Regulator from law firm Fieldfisher.
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In early December, Minister for Climate, Energy and the Environment Darragh O’Brien announced a public consultation regarding the regulation of costs in cases.
The proposed fee scales would apply to High Court cases taken under the Aarhus Convention, an international agreement holding that access to justice in environmental matters should not be prohibitively expensive.
The draft fees model for successful court applicants provides for total fees ranging from about €41,000 to €80,500. This was set out in a report prepared by former Legal Aid Board chairman John McDaid and published by the Minister in December.
The draft fees contrast with an average €180,000 paid to successful applicants following full hearings in some of the 45 cases examined by Fieldfisher. These cases were finalised between 2012 and 2022 and it was An Bord Pleanála, now An Coimisiún Pleanála, that paid the legal costs to the applicants.
On top of these costs was the €100,000 average payment per case to An Bord Pleanála’s defence lawyers, making total costs of almost €280,000 for full hearings.
Even when the board is successful in cases, it can have difficulty recovering costs from applicants, the report noted.
In his report, Mr McDaid said he sought to ensure the proposed fees do not undermine access to justice or breach the State’s public participation obligations under the Aarhus Convention or human rights law.
His proposed fee structure is based on “trigger points” during a hearing and identifies separate fees for solicitors and senior and junior counsel. A trial judge will decide the level of legal complexity in cases and will have discretion to allow higher costs in certain cases.
