Boiler owners who lost a challenge to reduced RHI payments are facing an attempt to “ambush” them into paying a Stormont department’s full legal costs, the High Court heard on Thursday.
With the group’s own bill believed to be in excess of £200,000, counsel claimed the “eleventh hour” bid to remove a £15,000 limit on exposure to their opponent’s costs went against European law.
Gerald Simpson QC said: “It was almost like an ambush situation at the end of the case.”
Last year more than 500 members of the Renewable Heat Association NI Ltd failed in a bid to judicially review the Department of the Economy for cutting tariffs in the flawed green energy scheme.
A judge ruled in December that the introduction of capped tariffs was a lawful step to prevent a potential overspend of close to £700m.
An appeal against his determination is expected to be heard later this year.
But the parties returned to court today for new arguments on costs.
The association believed the terms of the Aarhus Convention for capping costs in environmental challenges applied.
Under those arrangements it would only have to pay £15,000 towards the Department’s legal expenses.
Mr Simpson argued that no issue was raised until January 12.
Cases should be run on the basis of legal certainty about financial exposure in the event of losing, he contended.
“The situation now adopted by the respondent at this eleventh hour is, if it’s allowed to be made, incompatible with European law,” the barrister said.
Mr Simpson further claimed the department kept silent before seeking to have his client made liable for “open ended costs”.
Tony McGleenan QC, representing the department, countered that the Association made two separate judicial review applications last year.
In the first, aimed at preventing disclosure of its members’ names, no protective costs order was sought.
“The applicants were successful on one point and obtained a costs order in their favour which, I understand, they enforced without ever seeking the protection of the Convention,” Mr McGleenan said.
He added: “We have done nothing that departs from the regulations.”
Reserving judgment on the issue, Mr Justice Colton is expected to give his decision later this month.