The High Court has ordered the Minister for Health to pay A.Q.’s costs of and incidental to her appeal concerning a Hepatitis C Compensation Tribunal decision, even though the appeal itself was dismissed.
In a separate judgment delivered on 13 October 2016, Mr Justice Bernard J. Barton considered the parties’ competing applications for costs. A.Q. argued that special circumstances justified departing from the ordinary rule that costs follow the event. The Minister submitted that the rule should apply because the State had successfully defended the appeal.
The court said costs are governed by a discretion that must be exercised for stated reasons, with the ordinary rule remaining the starting point. It considered whether the appeal could be treated as a test case. A.Q. submitted that it concerned uncertainty about the interpretation of a statutory provision setting a qualification threshold for claims, and that the decision would assist future claimants and the Tribunal.
The Minister argued that there was no evidence of other pending claims that could benefit. The judge rejected that submission. He said the court was aware of other people who, like A.Q., had tested positive by CHLIA before the relevant provision took effect. He also noted that cases before the Tribunal commonly involved difficult threshold requirements.
The judgment records that the disputed issue arose at the Tribunal’s prompting during the proceedings, requiring both sides to retain experts to give evidence. A.Q. had also argued that the Tribunal’s prior handling of applications and the need for expert testimony showed the issue’s uncertainty and complexity.
The court accepted A.Q.’s submissions and found that the particular circumstances justified departing from the usual costs rule in the interests of justice. Its order was limited to her costs of and incidental to the appeal. The judgment did not reverse the dismissal of the appeal; it addressed the parties’ applications for costs following that decision.