Key issue: Does the “not prohibitively expensive” requirement in Art 11 of Directive 2011/92/EU have direct effect and what is the temporal application of that rule?
The CJEU went on to confirm that an interpretation according to which An Bord Pleanála would be entitled to claim all the costs it reasonably incurred in defending the judicial review proceedings “would be contrary to the principle of legal certainty and the requirement for the foreseeability of EU law”. Recalling the Advocate General’s Opinion in this case, the Court pointed out that, prior to the Taxing Master’s decision, Mr Klohn could not have been aware of the amount of costs for which he would be liable and was not, therefore in a position to challenge the High Court’s decision of 6 May 2008 with full knowledge of the facts. The amount of costs recoverable as determined by the Taxing Master was “all the more unforeseeable” for Mr Klohn because “it was around three times the amount of the costs which he himself had incurred in the proceedings.”
