The High Court has awarded the Health Service Executive its costs after rejecting a doctor’s application for judicial review, and lifted a stay that had halted an investigation into his conduct. The court also temporarily stayed the costs order to allow time for an appeal.
In a ruling on costs delivered electronically on 20 May 2021, Mr Justice Barr said the HSE had been entirely successful in resisting the relief sought. He rejected the applicant’s arguments that there should be no order as to costs because the court had left open the possibility of a fresh request to review his administrative leave, and because the case raised an important issue about when judicial review proceedings are premature.
The judge said the administrative leave issue before the court concerned the lawfulness of the chief executive’s decision to place the applicant on leave from 6 August 2019. That issue had been resolved in the HSE’s favour. The court’s earlier comments about a possible future request, based on further opinion evidence, did not alter that result, he said.
Nor did resolving competing legal authorities make the case public interest litigation, the judge ruled. He said the case involved no point of exceptional public or constitutional importance and no novel issue. The court therefore awarded the HSE the costs of the proceedings, including reserved costs, to be adjudicated if the parties could not agree.
The judge noted that the investigation had been stalled since February 2020 under a stay granted by Mr Justice Meenan. The substantive hearing had then been delayed until March 2021 because of the Covid-19 pandemic. The ruling said the applicant had been unable to work as a gynaecologist in the public hospital system, resulting in substantial lost earnings and the possibility of becoming de-skilled. It also noted that the hospital had been without a consultant gynaecologist in its public wards for a prolonged period.
The court lifted the stay on the investigation into the applicant’s conduct on 4 and 5 September 2018, saying it was in the interests of the applicant, the HSE and the public for the matter to reach a conclusion.
The costs order is stayed for 28 days. If the applicant lodges a notice of appeal within that period, the stay will continue until the Court of Appeal finally determines the matter. Both parties were also ordered to lodge copies of their written legal submissions with the High Court’s Central Office within four weeks.