The High Court has ruled that the costs of an interlocutory motion in a defamation action brought by Beaumont Hospital Board and Marie Murray against Gemma O’Doherty will be costs in the cause, meaning responsibility will depend on the eventual outcome of the action.
Mr Justice Allen also included the plaintiffs’ costs of their application for short service in that order. The ruling addresses costs only; it does not decide the underlying claims for permanent injunctions or damages.
In July 2021, the judge had made an interlocutory order under section 33 of the Defamation Act 2009. It directed the removal of three videos posted on O’Doherty’s website and restrained their further publication, as well as publication of defamatory statements about the plaintiffs or Beaumont Hospital staff, pending trial. The judge said then that the words complained of were defamatory and that no defence was reasonably likely to succeed on the evidence before the court at that hearing. He also said the action could still fail at trial.
The judge had provisionally proposed that the motion’s costs be costs in the cause and invited written submissions. The plaintiffs supported that proposal. O’Doherty, representing herself, submitted that there should be no costs order at that stage. She argued that the application had been made without notice and challenged the fairness of the June hearing, including the absence of witness testimony and cross-examination and the time available to gather evidence.
Justice Allen said the June 14 application was for short service: permission to bring the motion forward, which was granted with a return date of June 18. The substantive motion was brought on notice and decided on affidavit evidence, the usual procedure for interlocutory motions, he said. O’Doherty’s affidavit, sworn that morning, was accepted for filing. The plaintiffs’ witnesses did not attend because courtroom capacity was limited by social-distancing requirements; the judge said the format would otherwise have been the same.
O’Doherty also relied on the public-interest subject matter and the fact that the action remained undecided. The judge said the costs order left open the possibility that she could succeed at trial. If she prevails, she will have her costs of the motion and action; if she loses, he said, she will almost certainly be ordered to pay the plaintiffs’ costs.