Republic of Ireland
The High Court found that it had in principle jurisdiction to award a Protective Costs Order (PCO), however refused to do so on facts which did not characterise a "public interest law challenge".
The Applicant was a company incorporated by a concerned residents' group. They sought to judicially review a decision of An Bord Pleanála to allow McDonalds to change hotel premises into a drive-through restaurant. McDonalds applied to the Court for an order for security for costs against the Applicant. The Applicant applied to the Court for a PCO. This was the first time an order of this nature was formally sought in this jurisdiction.
The High Court refused to make an order for a PCO.
Laffoy J found that the Applicant had failed to satisfy the exceptional criteria articulated by Dyson J in R (on the application of CPAG) -v- Lord Chancellor's Department  EWHC Admin 151. The challenge was not a public law challenge in the sense explained in that case. The members of the Residents' Association clearly had a private interest in the outcome of the application. The application did not raise an issue of general public importance and it was not in the public interest to grant a PCO. Finally, the Court questioned the fairness of awarding a PCO against a private company for the actions of An Bord Pleanála.
Points of note
Laffoy J endorsed the principles outlined by Dyson J in R (on the application of CPAG) -v- Lord Chancellor's Department  EWHC Admin 151. The Court found that in principle it had jurisdiction to grant a PCO. Laffoy J noted that it was difficult in the abstract to identify the types of cases in which the interests of justice would require the court to grant a PCO.
This was a planning judicial review whose importance beyond the Residents' Association was arguably limited and it is perhaps unsurprising that a PCO was refused. It is worth noting that it pre-dates R (on the application of Cornerhouse Research) -v- Secretary of State for Trade and Industry  EWCA Civ 192, which sets out the English criteria for PCOs. Moreover English judicial thinking on the "private interest" requirement has since developed.