Jack Chambers suggested ban on ‘no foal, no fee’ environmental cases for judicial review

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Minister for Public Expenditure Jack Chambers suggested that legal firms be banned from taking environmental cases on a ‘no foal, no fee’ basis.

In a review of judicial reviews around planning and infrastructure, Chambers said “radical options” needed to be considered by Government to cut down on legal challenges.

A full copy of his letter – which his department refused to release in its entirety – warned of the potential “industrialisation” of smaller-scale court action.

He added: “It would appear to be open to the Government to ban ‘no foal, no fee’ funding arrangements for judicial review.”

This is the system widely used by solicitors to take on public interest cases where individuals would not otherwise have the financial means to take legal action.

Chambers’ letter said that in the UK, people who took cases were “liable for a proportion of the costs associated with an unsuccessful environmental judicial review”.

He said this would introduce “jeopardy” for anybody who decided to go to court and might “limit frivolous or vexatious challenges”.

The correspondence was sent to Minister for Climate Darragh O’Brien, Minister for Housing James Browne, and the Attorney General in June of last year.

The Department of Public Expenditure and Reform had refused to release the full document, saying it was protected by laws covering Cabinet confidentiality.

The letter said there would be benefits to introducing a “scale of fees scheme” to limit the number of court appeals taking place.

The minister wrote: “It should limit the incentive for environmental judicial reviews to grow unjustifiably complex and perhaps encourage earlier settlement.”

However, Chambers warned there was the potential for reform in the area to lead to unintended consequences.

“Coupling this reform with a legal costs mechanism may increase the number of judicial reviews being taken on environmental grounds i.e. lead to an industrialisation of smaller scale judicial reviews,” he said.

The letter said the then ongoing review of bottlenecks in national development had identified legal cases as a major impediment to projects.

He claimed there were a growing number of judicial reviews and that they were “one of the most significant barriers to infrastructure delivery”.

Chambers added: “This results in significant direct and indirect costs to major infrastructure projects and makes it more difficult to plan and deliver infrastructure in a co-ordinated manner.”

The number of judicial reviews in the planning area dropped by around 20 per cent last year, even as the overall proportion of cases taken by landowners and developers rose sharply.