The Court of Appeal has ordered appellants LW and RL to pay the Health Service Executive’s costs of their unsuccessful appeal, including the costs of the costs application. The amount is to be assessed if the parties cannot agree.
In a ruling delivered electronically on 17 January 2024, Ms Justice Tara Burns said the normal rule that costs follow the event should apply. Justices Binchy and Allen agreed with the ruling.
The appeal’s substance had been decided in October 2023. The court dismissed it and affirmed a High Court order made in favour of the appellants. The High Court had refused the reliefs they sought but granted a declaration that the HSE had a continuing duty to provide the first appellant, LW, with appropriate mental health treatment and services in accordance with law, particularly section 7 of the Health Act 2004, as amended. The High Court had also awarded costs to the appellants.
The appellants appealed both the declaration granted in their favour and the refusal of their requested relief. The Court of Appeal said the case advanced on appeal focused on treatment for LW at the Central Mental Hospital, whereas the High Court case had concerned community-based treatment from the local community mental health service. The appeal court had said it could not consider that new case because it had not been argued below, was not supported by the pleadings and, in substance, concerned the meaning and implementation of the High Court order.
After the substantive judgment, the court invited written submissions on costs. The appellants argued that there should be no order as to costs, citing the circumstances, issues of general public importance and their contention that the court had held a full medical assessment should take place. The HSE sought its costs.
Justice Burns rejected those arguments. She said the appeal did not raise an issue of general public importance in the legal sense, and clarified that the court had not ordered a full medical assessment. It had said it was difficult to see how such an assessment was not covered by the High Court order. She said the appeal was misconceived and that another forum remained available to litigate the extent of the treatment and services the HSE was obliged to provide.