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VILLAGEAugust/September
NEWS AARHUS
Irish legislation is contingent on getting declaration, obscurely-conditioned,
anti-client and opaque. By Kieran Fitzpatrick
Aarhus: State drags feet on legal
costs in environmental cases
T
HE Aarhus Convention aims to pro-
tect the environment and proclaims
the public to be the best guardian of
the environment. There are three strands to
the convention: ) Access to information; )
Public participation; and ) Access to justice
to review environment-related decisions or
to enforce environmental law.
Ireland was the last member of the EU
to ratify Aarhus and became eligible for
‘Communications’ subsequent to October
. This delay comes from the apparent
reluctance of the Irish government to deal
with the issue of prohibitive legal costs.
The EU Commission prosecuted Ireland in
for failing to comply with an Aarhus-
related EU directive. The European Court of
Justice (ECJ) ruled in that Ireland had
failed to ensure that legal costs (relating to
environmental legal actions) were not pro-
hibitively expensive.
Special Costs Regime – Catch 22
Ireland responded by passing legislation
in , the effect of which was to alter the
legal-costs rules from the prevailing English
Rule (losing litigant pays winner’s costs) to
the American Rule (each side pays their own
costs) for legal actions that relate to an EU
directive implementing certain Aarhus com-
pliance measures.
Ostensibly, the special costs regime (SCR)
means that a party could at least represent
herself, without being threatened with a
huge adverse legal costs bill, if she failed in
her legal action. However, there is a Catch
in the SCR. To determine that a civil action
falls under the ambit of the SCR, the appli-
cant must risk an adverse legal costs award
in making the application for such a declara-
tion. This trap became stark in one case – an
application by Dymphna Maher to the High
Court in .
Judge Hedigan in refusing the application
effectively said that the Catch arguably
“acts in such a way as to nullify the State’s
efforts to comply with its obligation to
ensure that costs in certain planning mat-
ters are not prohibitive”.
The SCR can be scuppered if (i) the claim is
frivolous or vexatious, (ii) the applicant con-
ducts her litigation in a manner disapproved
of by the court, or (iii) the applicant acts in
contempt of court.
The second of these conditions introduces
a huge level of fear due to the lack of clarity as
to how this sanction might be implemented.
The third item, “contempt of court”, also
introduces uncertainty, as became evident in
the European Court of Human Rights (ECHR)
case of The Sunday Times v UK [] (the
Thalidomide case). The UK introduced “con-
tempt of court” legislation in giving
clarity to the various offences encompassed,
but Ireland did no such thing.
So Ireland’s attempt to comply with the
ECJ decision against it, was to intro-
duce a SCR with a Catch , plus other
unpredictable adverse outcomes, any of
which could leave an applicant with a life-
ruinous legal bill. This hardly meets the ECJ’s
To determine that a civil action falls under
the ambit of the SCR, the applicant must
risk an adverse legal costs award in making
the application for such a declaration
“
August/September VILLAGE
demand that litigants be assured that costs
are not prohibitive “with all the requisite
clarity and precision”.
In any event, the American Rule should not
be seen as a complete solution to the problem
of prohibitive legal costs for the following
reasons:
. An applicant may not always have the
wherewithal to initiate legal proceedings
as a lay litigant.
. Many environment-related legal actions
inevitably fall under the ambit of EU law,
which can result in a reference to the ECJ.
The rules of procedure of the ECJ require
that any applicant must be represented
by a lawyer before the ECJ.
In these circumstances, an applicant must
give consideration to the employment of a
lawyer.
Own Lawyer’s fees
A litigant who hires a lawyer to represent her
can be in a tricky position when she comes to
deal with the legal bill issued by her lawyer,
at the end of proceedings. If she receives a
surprisingly high legal bill, she is left with
two choices:
(a) Complain to the Law Society. The outcome
of this process is generally not published;
so it fails to comply with the demands of
Aarhus that “Each Party shall .... estab-
lish a clear, transparent and consistent
framework to implement the provisions
of this Convention.” or
(b) Avail of the Taxation process (or legal
costs adjudication) for solicitor/own-
client costs. However, this also lacks
transparency and operates rules that are
unfair to complainants:
(i) Unless the complainant can show that
she has been overcharged by at least
one sixth, she must pay the ‘costs of
the hearing’.
(ii) The complainant must pay an %
stamp duty, if she fails to prove she
has been overcharged by one sixth.
(iii) There is no published database of
outcomes so that a complainant is
blinded as to what is a fair fee of her
lawyer, and is left more vulnerable
to being ensnared by the one-sixth
rule.
These rules illustrate the failure of govern-
ment to bring in “a transparent framework”
to constrain legal costs; arguably the most
important demand of Aarhus. These pro-
lawyer rules also violate “equality before the
law” requirements as well as other human
rights.
Equality under law is broken on two
grounds: first, a client is treated differently
to a solicitor in the matter of a contractual
dispute. Second, solicitors are treated differ-
ently to other professionals, such as doctors
or dentists in their contractual right to be
paid professional fees. Dentists, for exam-
ple, don’t enjoy the deterrent effect of a “one
sixth rule” plus an % stamp duty on their
fees. Dentists cannot overcharge with any
degree of impunity. The US Supreme court
ruled that imposing different legal rules on
one party to litigation as opposed to another
party, particularly on arbitrary grounds,
violates the equal-protection clause of the
US Constitution (GULF v ELLIS []).
The “one-sixth” rule allows solicitors
to overcharge clients by about % with
impunity (as costs of a hearing will likely
be about % of adjudicated costs, plus %
stamp duty), without any effective remedy
– violating Article ECHR in addition to
Protocol of the ECHR (relating to prop-
er ty rights).
The above hurdles breach the requirement
under Aarhus to ensure that there are fair
and effective judicial remedies. Imposing an
% stamp duty on a litigant who seeks to
challenge the high legal fees of her own law-
yer, particularly in circumstances where it
is adjudged that she has been overcharged,
is a penalisation of her involvement in lit-
igation, violating the Aarhus requirement
that participants “shall not be penalized,
persecuted or harassed in any way for their
involvement”.
Lack of transparency
The government fails to allow the sunlight
of public scrutiny to shine on the oppres-
sive legal-costs system that prevails in
Ireland. It does not publish the outcomes of
legal-costs adjudications (a small number of
cases excepted) and therefore makes it very
difficult to do comparative analysis with legal
costs in other countries – stifling advocacy
for effective reforms.
While the amended Legal Services Bill
(LSRB-) lifts the cloak of secrecy that
applies to lawyer-own-client legal-costs
adjudications somewhat compared to the
original draft (LSRB-); transparency
problems remain. Adjudicators will now
have discretion to hold secret hearings, but
are not mandated to publish compelling
justifications for doing so. The current one-
sixth rule (.%) threshold (applicable to
lawyer-own-client disputes) is to be reduced
to % (LSRB- S.()).
Interestingly, the government has back-
tracked on its original proposal (LSRB-
S.) to extend this inequality to all legal
costs adjudications. Online access to deter-
minations is not envisaged (registers of
determinations shall be available for inspec-
tion only). Further, there is no clarification
as to whether published “determinations”
include the costs of adjudication hearings.
The proposed redaction of clients’ names
from published outcomes (LSRB-
S.()c.) necessarily precludes linkage to
the original case that gives rise
to the dispute, thus hampering
transparency in lawyer-own-
client disputes. Transparency
must extend to the costs of envi-
ronment related court actions
and requires that such cases be
identifiable. This is necessary
as, otherwise, it would be nearly
impossible to assess whether the
costs of procedures related to
environmental matters are “not
prohibitively expensive”.
Legislation purporting to
implement Aarhus is strewn
over various Acts making it near
impossible for “officials...to pro-
vide guidance to the public”, as
Aarhus demands. The govern-
ment, by failing to implement
effective reforms, is not “desiring
to ... encourage ... participation
in, decisions affecting the envi-
ronment ...” (from preamble of
Aarhus). For those who have been following
this is no surprise.•
The above is a summary of Kieran Fitzpatrick’s
“communication” to the Aarhus Convention
Compliance Committee in Geneva. Its
admissibility is currently under review.
The Committee’s findings are not legally
binding, but its “recommendations” are
often implemented by signatory countries.
Alternatively, it can simply throw out a country
for non-compliance.
The European
Court of Justice
(ECJ) ruled
in 2009 that
Ireland had
failed to ensure
that legal costs
(relating to
environmental
legal actions)
were not
prohibitively
expensive
“
