A new fee scale aimed at slashing legal costs payable by public bodies in environmental law cases will not harm environmental protections, the Minister for Justice has said.
Jim O’Callaghan said the new scale still allowed for “generous” fees in environmental judicial reviews and would “focus the minds” of applicants who wanted to pursue such cases.
Ministers proposed the fee scale, to come into effect on Monday, as part of Government efforts to speed up delivery of water, transport and electricity for housing, industry and infrastructure projects.
The scale applies to High Court cases taken under the Aarhus Convention, an international agreement that says access to justice in environmental matters should not be prohibitively expensive.
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The new rules, provided for under section 294 of the Planning and Development Act 2024, specify a scale of costs to be awarded to applicants, subject to judicial discretion for a successful applicant.
The Government argued the current system, under which a public body is liable for the costs of a successful judicial review applicant, meant “unpredictable” costs for the State.
During a public consultation, an overwhelming majority of 1,400 submissions from lawyers, environmental groups and others opposed the proposed fee scale. The Law Society said the proposed cuts were contrary to EU law, would “harm environmental protection” and would make litigation “prohibitively expensive”.
Speaking to The Irish Times on Wednesday, O’Callaghan said he had been consulted, as was required, about the fee proposal before the regulations were signed on Tuesday by the Minister for Climate, Energy and the Environment, Darragh O’Brien, and the Minister for Public Expenditure, Jack Chambers.
O’Callaghan said he did not share the concerns that the new system would harm environmental protection.
“It does not limit the amount a client can pay a lawyer, that can still continue, but what it does limit is the amount of legal fees that can be recovered on adjudication,” he said.
The new regulations divided cases into standard, complex and very complex categories and “generous fees” could still be recovered on foot of the regulations, he said.
The Government had to try to respond to “the breadth of applications being brought in the judicial review sphere”, he added. The new rules would “focus the minds of applicants to concentrate on where they have a strong point in a legal claim as opposed to dealing with a variety of weaker claims”.
Addressing speculation of legal challenges to the measures, O’Callaghan said it was open to people to bring challenges and Ministers had received legal advice in respect of the proposals.
The alternative was “just do nothing” and that “is not an option”, he said. “Any radical or significant changes carry with them a threat of legal action but that’s a threat we just have to face.”
In a letter to the Taoiseach last October, O’Brien said steps had been taken to update the proposed scale, which capped fees between €40,897 and €65,805, after the Attorney General identified significant legal risks across some of the proposals.
Changes subsequently introduced included a different fee breakdown for standard, complex and very complex cases, and a new section to reflect a fee structure with a case broken down into several modules.
An Taisce, in a statement on Wednesday that was strongly critical of the new rules, said the “highly Trumpian move” of signing the regulations “will all but bring an end to public-interest environmental litigation in Ireland”.
Even if an applicant won their case, these rules meant it could cost them more than €100,000 to correct an unlawful decision made by a public body, it said.
The new regime “allows the State, a respondent in judicial reviews, to tweak the system and scale of fees on a whim if it doesn’t like being held accountable for its decision”.
The new cost rules “are almost certainly unlawful”, “a significant attack on the public, civil society and public accountability” and “should be scrapped”, it said.
