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The lobby group, Friends of the Irish Environment (FIE),
has written to President Mary McAleese urging her to convene
the Council of State with a view to referring the planning
Act to the Supreme Court to test its constitutionality.
A last-minute amendment to the Planning and Development (Amendment)
Act means members of the public “will find it impossible to
obtain legal representation if their costs will not be met,
even when they win against the State,” it warned.
In its letter to the President, FIE
claim that this amending legislation, which was guillotined
through the Dáil and Seanad, will prevent citizens taking
cases to the courts - contrary to the Constitution as well
as to EU directives.
Under section 50(b) of the Act, each party 'shall bear
its own costs' and a court would only be entitled to award
costs 'in a matter of exceptional public importance and
where [in] the special circumstances of the case it is in
the interests of justice to so do'.
The group said - “This will act as an absolute bar to anybody
actually having an award of costs made in their favour, leaving
even successful challengers to pay the enormous cost of the
Irish legal system” - €120,000 to €140,000 for even a "simple
case”.
Barrister Oisín Collins said it was “difficult to see how
a blanket removal of an entitlement to recover costs, except
in the exceptional cases . . . could
do anything other than create a clear impediment to those
seeking justice having access to the courts”.
In his review of section 50(b) for the group, he suggested
several solicitors and barristers who were prepared to take
cases on a contingency ('no foal, no fee') basis, would
now be reluctant to do so, as their clients would have to
bear their own costs.
The “exceptional public importance” provision was “an extremely
high and difficult bar to reach,” he said, adding - “I simply
could not see any lawyers . . . engaging
in litigation on a contingency basis, having regard to this
exceptionally high threshold.
“The public concerned will be forced, regardless of the strengths
or otherwise of their case, to fund the litigation in its
entirety themselves. This is likely to present a very significant
deterrent to many.”
However, Ciarán Cuffe, Minister of State with responsibility
for planning, claimed that section 50(b) improved the current
situation, as, until now, litigants seeking judicial review
could be liable for all costs.
“Once the Bill becomes law, they will only be responsible
for their own costs. Looking ahead, we envisage further changes
in order to incorporate the [EU] public participation directive
across all Government departments and to ensure that any outstanding
changes required for compliance with the Aarhus convention
are completed.”
Last year, the European Court of Justice found Ireland to
be in breach of its obligations under the environmental impact
assessment and public participation directives by failing
to ensure that applicants for judicial review were not exposed
to 'prohibitive costs'.
FIE spokesman Tony Lowes insisted that section 50(b) “purports
to implement the European legislation encouraging access to
justice, but does the opposite” and was among the “hundred
pages of amendments” made to the Bill with no explanatory
memorandum. “We were told that if they did not get this Bill
through now, as opposed to after the summer recess, they would
be hit with daily fines from the EU,” he said.
Source - The Irish Times
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