High Court judge warns costs system 'should not be viewed as a complete gravy train'

Gordon Deegan

A High Court judge has warned that the costs system "should not be viewed as a complete gravy train" and that the system is already seriously imbalanced against private sector developers.

Mr Justice Richard Humphreys - who presides over the Planning and Environment Division of the High Court - made his comments in a costs judgement concerning a case where he has already ruled that an An Bord Pleanála report error about a Leisler bat located in a barn outside Ennis is not sufficient to halt contentious plans for a new 200MW €1.2 billion data centre campus.

In April 2024, An Bord Pleanála granted planning permission for Art Data Centres Ltd comprising six data halls covering 145 acres of lands adjacent to the Tulla Rd on the eastern outskirts of Ennis near Junction 13 on the M18 motorway connecting Galway to Limerick.

However, opponents of the data centre, Colin Doyle, Friends of the Irish Environment CLG, Futureproof Clare, Martin Knox and Christine Sharp sought a High Court judicial review of the appeals board permission.

Last October, An Bord Pleanála conceded the objectors’ claim for quashing the board’s data centre planning permission where they admitted that the Board erred in law in failing to consider adequately the environmental effects of the proposed development on bat fauna.

However, Art Data Centres Ltd are contesting the appeals board’s High Court judicial review concession to the objectors.

Art Data Centres Ltd was last month successful in the first part of their challenge when dismissing the objectors' grounds over the Leisler Bat, Mr Justice Humphreys described the appeals board inspector’s error about the bat on page 74 of the inspector's report as ‘harmless’.

Now in a costs ruling concerning the Leisler Bat module of High Court action, Mr Justice Humphreys has ruled that he would make no order for costs for the applicants meaning that they will have to pay their own costs for that module.

Mr Justice Humphreys stated that the losing side implausibly asked that their costs be reserved instead of being the subject of no order.

He said that one of the reasons put forward was that the objectors to the data centre might succeed on a second strand of their High Court judicial review challenge on the issue of a derogation licence.

In his costs ruling, Mr Justice Humphreys said: “There’s no point reserving the losing applicants’ costs because there is nothing to discuss – they lost. So they aren’t going to be getting their costs of the issue on which they lost.”

He remarked: “No order as to costs for losers is merely a bracing Autumn breeze, not a Baltic Winter blizzard.”

He said that we are here because the objectors to the data centre “proposed a spurious point that the permission should be quashed because of failure to take into account a bat roost, even though all potential roosts had already been accounted for, and then made a spurious objection to no order as to their costs of the losing point”.

He further added what’s notable about the textbook applicant rhetoric which is by no means confined to these applicants – is that when there is any suggestion of no order as to costs, “the response is dumbfounded condemnation of a “punitive” order”.

He said: “This is obvious nonsense to anyone outside the bubble of likeminded free-riding applicants.”

He said: “The court isn’t punishing these applicants for making losing points – all I am doing right now is saying that they won’t be getting their costs of doing so.”

Mr Justice Humphreys said: “Overall we can’t lose sight of the fact that the costs system is already seriously imbalanced against opposing parties and particularly private sector developers who have to pay all of their own costs as they go with minimal meaningful comeback against applicants who lose in whole or in part.”

He said: “The system should not be viewed as a complete gravy train whereby any attempt to consider mitigation of complete and total costs in favour of an applicant is castigated as being unfair, inequitable and a breach of domestic, European and international law.”

Mr Justice Humphreys said that for a court to succumb to that unfounded rhetoric would be to inadvertently render the system even more one-sided and imbalanced against opposing parties (developers) than it already is.