The Government is bracing for a High Court challenge against new measures to cap legal fees in planning cases after Attorney General Rossa Fanning warned of “significant legal risks” in the proposal.
The measures would drastically curtail lawyers’ earning potential in judicial review court cases taken on environmental grounds against planning decisions by public bodies.
Although successful litigants often rack up legal fees amounting to hundreds of thousands of euro, Minister for the Environment Darragh O’Brien wants to cap State payments in a range between €40,897 and €65,805.
Mr O’Brien’s department is said to have received more than 1,400 submissions on the proposed caps in a public consultation which closed on Thursday. Many responses are known to have questioned the validity and extent of the proposed caps.
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Such submissions have increased the prospect of a legal challenge, leading people in Government circles to conclude that the Minister now faces the inevitability of a test before the courts.
The drive to cut legal fees is central to the Government efforts to speed up water, transport and electricity projects and curtail infrastructure costs.
The plan was developed by the Accelerating Infrastructure Taskforce, with the aim of reducing barriers to industry and housing, which remains the Coalition’s top priority in the second year of its term.
But preparations for the cap come against the backdrop of legal advice from Mr Fanning, whose office urged caution, prompting changes to the scheme even before draft caps were published last month.
“It should be noted that the advice identified significant legal risks across a number of aspect[s] of proposals,” Mr O’Brien told Taoiseach Micheál Martin in a letter on the proposals.
This letter, dated October 14th, 2025, and released under the Freedom of Information Act, followed talks with Mr Fanning’s office and the findings of an external consultant.
“In recent weeks, my officials have re-engaged the consultant to assist with the process of updating the proposed scale of fees with a view to addressing, to the greatest extent possible, the significant legal risks identified in the advice,” the Minister added.
The Government never publishes Attorney General advice. However, Mr Fanning’s office is known to have warned against a single cap, as such a measure would increase legal risk.
He also advised that lower caps would only increase the risk of a successful court challenge. His office advised against restricting any caps to cases taken under the Aarhus Convention, an international agreement that governs access to justice in environmental matters.
Such warnings led Mr O’Brien to propose a sliding scale of caps for “standard” legal cases and cases deemed “complex” and “very complex”.
Research for planning regulators shows the average payment to applicants’ lawyers was €179,537 in a sample of 44 cases against what was An Bord Pleanála (now An Coimisiún Pleanála), which went to a High Court hearing.
In Mr O’Brien’s proposal, the cap in a “standard” case would be €40,897. The cap would be €53,351 in “complex” cases and €65,805 in “very complex” cases.
Judicial review applicants often initiate cases with lawyers acting on a “no foal no fee” basis, where the applicants incur no fees if they lose.
The State is required to pay applicants’ fees if public bodies lose and cannot recoup costs even when the State wins.
“In contrast, the applicant for judicial review will recover legal costs if they are successful but will not be liable for costs if they lose,” said a recent Department of Public Expenditure report on taskforce consultations. “This provision effectively insulates applicants from adverse cost exposure.”
Mr O’Brien’s department declined to comment on Mr Fanning’s views. “The advice of the Attorney General to the Minister is confidential,” it said.
“Any changes that were made to the report were informed by the process being undertaken and the policy views of the department and cannot be attributed solely to legal advice.”
