The High Court has ordered Gemma O’Doherty and John Waters to pay limited costs to the State respondents and the Oireachtas after refusing their application for leave to bring a judicial review challenge to Covid-19 legislation and regulations.
In a judgment delivered on 4 June 2020, Mr Justice Meenan said the applicants had failed to establish grounds to depart from the usual rule that costs follow the event. He limited the award to costs associated with the hearings on 5 and 6 May 2020, including legal submissions and affidavits. Those costs are to be adjudicated if the parties cannot agree them. The judge also ordered that the application be dismissed.
The costs ruling followed an earlier judgment on 13 May 2020 refusing leave to challenge the constitutionality of legislation and regulations intended to combat Covid-19 and address its economic and social effects. The applicants had also sought to challenge the procedures used by the Oireachtas to enact the measures.
The applicants argued that they should have been allowed to proceed ex parte, that the Oireachtas did not need separate legal representation, and that the public-interest nature of the case meant they should not face costs. They also sought a Protective Costs Order and relied on an English Court of Appeal decision concerning costs at the leave stage.
The respondents and the Oireachtas submitted that they were entitled to costs under section 169 of the Legal Services Regulation Act 2015. The judge held that the English decision relied on by the applicants was based on legislation that did not apply in Ireland, and said a Protective Costs Order had no application.
The court had directed that the application be heard on notice, allowing the respondents and the Oireachtas to file affidavits and submissions. The judge said the applicants did not face a higher threshold for leave as a result, but had to address the opposing case. He also said separate representation was required because the applicants were making a case against both the Executive and the Legislature.
In considering the public-interest argument, the judge acknowledged the importance of the issues raised by the widespread restrictions. But he said the applicants declined to file legal submissions or take a short adjournment to consider and respond to the other parties’ material. Their further affidavit dealt with standing but largely repeated their original grounds. The judge concluded their conduct meant the proceedings were “very far from being in the public interest”.