Plans to force objectors to pay their own legal costs for successful judicial reviews could lead to a surge in the number of people representing themselves in court, a senior law professor has said.
Professor Áine Ryall’s warning comes ahead of Government plans to introduce a cap on legal costs that can be claimed even when a legal challenge succeeds.
The move, due to go to public consultation next week, is intended to discourage judicial reviews, a form of legal challenge taken in the courts, which ministers say are holding up vital housing and infrastructure projects.
However, Professor Ryall, who criticised “misinformation and toxic narratives” around judicial reviews, said the result could result in more lay litigants – people going to court without lawyers.
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This, in turn, would take up even more of the courts’ time, she said.
“There’s an element of being careful what you wish for,” said the academic.
Professor Ryall was addressing a conference hosted by the Environmental Protection Agency and the Irish Centre for European Law.
She is co-director of the Centre for Law and the Environment at University College Cork and chair of the compliance committee of the Aarhus Convention, an international agreement on rights to environmental justice to which Ireland is a signatory.
“There is an enormous anti-Aarhus rhetoric right now and there is even more seriously an enormous anti-judicial review rhetoric and you could say, if you took it to its logical conclusion, an anti-rule of law rhetoric,” she said.
“I do fear that if attempts are made to cut back on rights of participation and to cut back on the right of access to the courts, people will still find a way and it might well be a way that’s going to be a lot more difficult to control.
“People do feel very strongly about the environment and about climate change and about their children’s health.”
“If there is an adjustment to costs protection and whatever else might happen there, you might well see a rise in lay litigations which will then result in more use of scarce judicial resources.”
She said it was necessary to “take a lot of heat out” of current discussions.
Greater resourcing of public authorities and the judiciary so they could do their job in a more timely way would help, she said.
[ Ranelagh residents react to legal challenge on MetroLinkOpens in new window ]
Former attorney general and barrister Paul Gallagher SC said greater consideration needed to be given to the public good in legal challenges.
“The environment is more than about individual decisions. It is about the transport, it is about the infrastructure, it is about the renewable energy – all projects that we have to develop because that will actually bring better lives," said Mr Gallagher, who, as attorney general in recent years advised the Government on overhauling planning law.
“If we have a trip wire for everything we do, we’re not going to achieve the environmental change that is so urgent.”
Mr Justice Anthony Collins suggested providing judges with lay assessors expert in environmental and climate science to fact-check complex submissions would help speed up cases heard by non-expert judges.
Ms Justice Nuala Butler said she had read that this week’s legal challenge lodged against Metrolink - the planned rail line linking Dublin city centre with Dublin Airport and areas further north - could delay the project by two years but she believed it would be “a lot more”.
