The Court of Appeal has ordered Gemma O’Doherty and John Waters to pay the appeal costs of the Minister for Health and Ireland, the Attorney General and three notice parties, after dismissing their appeal against the High Court’s refusal of leave.
In a ruling delivered electronically on 30 April 2021, President Birmingham rejected the appellants’ request to depart from the ordinary rule that costs follow the event. The costs are to be adjudicated in the absence of agreement.
The ruling concerns costs following the dismissal of the appeal. It does not set out the underlying appeal’s substantive issues or the High Court’s reasons for refusing leave. The President noted that the Court of Appeal had delivered a written judgment dismissing the appeal against that refusal.
The appellants argued that the matter should have been dealt with ex parte at the leave stage, without involving the respondents or notice parties. They said they had acted as litigants in person, so the other parties were not at risk of an adverse costs order against them, and that the proceedings raised important issues in the public interest without seeking personal gain.
The President was not persuaded. The respondents and notice parties had been put on notice, and the ruling said that was unsurprising given the importance of the issues. The appellants had continued with the proceedings when, in the President’s view, the extent of the difficulties they faced should have been apparent. The other parties had also spent time and resources dealing with the case.
The ruling said the proceedings raised important issues but involved no real legal novelty or development of jurisprudence. It distinguished matters of interest to the public, or a section of it, from proceedings that qualify as genuinely public interest proceedings, and concluded that this case did not fall into the latter category.
The President said the long-standing practice that costs follow the event had statutory support under section 169 of the Legal Services Regulation Act 2015. Edwards J and Costello J agreed with the President’s reasoning and decision.