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 pre-emptive costs order or a protective costs order (PCO). This was the first time an order of this nature was formally sought in this jurisdiction.
The High Court found that it had in principle jurisdiction to award a PCO, however refused to do so on facts which did not characterise a "public interest law challenge". It 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 [1998] 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, and 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.