Gemma O’Doherty and John Waters do not have to pay State costs for challenge to Covid-19 measures

The Supreme Court has ruled that Gemma O’Doherty and John Waters do not have to pay legal fees incurred by the State during their failed challenge against the constitutionality of laws introduced during the Covid-19 pandemic.

The court, on a six-to-one majority, earlier this month dismissed an appeal by Ms O’Doherty and Mr Waters against a decision by the High Court, later upheld by the Court of Appeal (CoA), not to grant them permission to bring their action against the public health measures on the basis that it was “misconceived and entirely without merit”.

Following that decision, the State applied for its legal costs, estimated to be a six-figure sum, on the basis it had been “entirely successful” in its appeal. Ms O’Doherty and Mr Waters had represented themselves throughout the appeal. The applicants opposed the application on grounds including that their action was “utterly exceptional” and was one where they had not sought any personal gains.

Mr Waters said that while the applicants “fundamentally disagreed” with the Supreme Court’s decision, the issues raised were of fundamental importance. He added that they had reluctantly brought the proceedings and had hoped that somebody more legally qualified than them, such as a retired judge, would have stepped forward to bring an action against the measures. However, this did not happen.

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Giving the court’s ruling, the Chief Justice Mr Justice Donal O’Donnell said that the court had decided to make no order in relation to State’s application that its costs be paid by the applicants. He also said that the court was vacating costs orders made against the applicants by the High Court and the CoA after both dismissed the applicants’ action.

He said that in arriving at their ruling, the judges were taking into account the decisions made against the applicants, the Supreme Court’s own findings and the manner in which the hearings had been conducted. The Chief Justice said the courts are places where issues of law must be argued in a professional manner and were not a place where general complaints against bodies such as the media are to be ventilated.

No personal gain

However, he said the court also had to take into account the nature of the arguments, the fundamentally important issues raised in the case and the fact the applicants did not seek to make any personal gain from the action. In those circumstances, the court was making no order for costs against the applicants regarding the State costs.

As for the costs incurred by the Dáil, Seanad and Ceann Comhairle for being a notice party when the matter was before the High Court and CoA, the Chief Justice suggested those parties could seek a costs order for the proceedings before the appeal court only.

The Chief Justice, Ms Justice Mary Irvine, Mr Justice John MacMenamin, Ms Justice Iseult O’Malley, Ms Justice Marie Baker, and Mr Justice Brian Murray all upheld the lower courts’ findings.

Giving the lead judgment earlier this month, the Chief Justice said the High Court was correct to refuse to grant leave in this case. He held that as a general rule the absence of expert or technical evidence cannot be a basis for the refusal of permission to seek to bring a judicial review action over the validity of legislation.

No expert evidence

The court held that such evidence is required where the legislation challenged recites circumstances as to why it is deemed necessary. In the case raised by Ms O’Doherty and Mr Waters, such expert evidence had not been adduced, the court said.

The applicants had challenged legislation including the 2020 Health Preservation and Protection and Other Emergency Measures in the Public Interest Act; the 2020 Emergency Measures in the Public Interest Act Covid-19 Act and the 1947 Health Act (Affected Areas) Order.

In their judicial review proceedings against the State and the Minister for Health, with the Dáil, Seanad and Ceann Comhairle as notice parties, the applicants sought to have various legislative measures declared unconstitutional and flawed.

In May 2020, Mr Justice Charles Meenan refused to grant them leave, saying their claims were not arguable. The appeal was opposed by the State.