A proposed new fees scale aimed at slashing legal costs payable by public bodies in environmental law cases is contrary to European Union law and would “harm environmental protection”, the Law Society of Ireland has said.
The scale – which caps fees to between €40,897 and €65,805 – would make litigation “prohibitively expensive”, see cases taken on “means rather than merit” and increase the numbers of lay litigants in court, the solicitors’ body said.
Ministers have proposed cuts the cuts as part of government efforts to speed up delivery of water, transport and electricity for housing, industry and infrastructure projects.
The society said a “sustained political campaign” in the lead up to the proposed scales had faulted the justice system for delays in housing and infrastructure delivery, but no evidence was provided to support that.
Of 191 new cases in the High Court’s planning and environment list last year, down 41 on the 2024 number, 69 were by landowners/developers and 86 by members of the public or environmental NGOs, which latter number was down 43 per cent compared to 2024, it said.
[ High Court action against legal fees cap expected ]
Solicitors’ representatives said the data suggested there were more judicial reviews over refusals, rather than grants, of planning permission.
The blame placed on judicial reviews taken by individuals “masks the real root causes” of the issues impeding development, including “chronic lack of investment” in the justice system, with resulting backlogs and delays, and practical challenges including capacity constraints in the energy grid and lack of adequate water infrastructure.
The Law Society said it opposed the proposed, or any legal fees scale, and believed the best approach was to have non-binding guidelines on legal costs.
It also said the Government should also consider alternatives to judicial reviews, including an internal appeals process, to reduce costs without restricting access to justice.
Its opposition to the proposed scale echoed strong concerns in a submission by The Bar of Ireland, representing more than 2,000 barristers.
The Bar said the measures risked making meritorious challenges “economically unviable” and imposing the legal costs of fixing the errors of State agencies and public bodies on those who raised legitimate concerns about them.
The “perverse” policy outcomes included increased numbers of lay litigants which would delay, not speed up, the hearing of planning cases, it said.
Both representative bodies made submissions in a consultation process announced by Minister for the Environment Darragh O’Brien on the regulation of costs relating to cases under section 294 of the Planning and Development Act 2024. The section permits the Minister to set a scale of fees for successful applicants in such cases.
The proposed fee limits would apply to High Court cases taken under the Aarhus Convention, an international agreement which requires that access to justice in environmental matters should not be prohibitively expensive.
More than 1,400 submissions were received before the consultation period ended on January 15th. Finalised fee proposals are to be issued later.
In a letter to the Taoiseach last October, Mr O’Brien said steps were taken to update the proposed scale of fees after the Attorney General identified significant legal risks across some of the proposals. Legal challenges over the measures are expected.
In the Law Society’s submission, published on Wednesday, it said the proposed fees scale was contrary to the Aarhus Convention requirement that review procedures in environmental matters must be “fair, equitable, timely and not prohibitively expensive”.
The proposed scale “embeds deep inequality between applicants and the State when it comes to judicial review”.
It also said the scale was incompatible with constitutional law and did not comply with all requirements of section 294. It was “very questionable” if the scale was compatible with competition law.
The proposed scale was modelled on the UK system, which was being scrutinised by the Aarhus Compliance Committee, it said.