THE COURT OF Appeal has ruled that John Waters and Gemma O’Doherty must pay the legal costs of their failed appeal against a refusal to permit them to challenge the constitutionality of laws introduced in response to Covid-19.

In March the CoA ruled that their appeal against the High Court’s decision not to grant them leave to bring their action should be dismissed on the basis it was “misconceived and entirely without merit”.

In a ruling today, the three-judge court, comprised of the CoA’s President Mr Justice George Brimingham, Mr Justice John Edwards and Ms Justice Caroline Costello found that normal rule whereby the losing side should pay the legal costs should be applied.

Mr Justice Birmingham said that O’Doherty and Waters had argued that the normal rule that costs should follow the event because the action was brought in the public interest raising issues of great importance.

The action was not brought with a view to achieving any great gain or advantage for themselves, they claimed.

Their application also was made on grounds including that the case should have been dealt with on an ex-parte basis and there was no need for the involvement of the state respondents in the proceedings.

They also argued that they had appeared before the court as lay litigants, and so the respondents were not at risk of an adverse costs order against them.

Giving the CoA’s decision Mr Justice Birmingham said that for the court to depart form the normal rule there has to be some “special, unusual or exceptional” raised.

The judge said he was not persuaded by any of the applicants’ arguments, and said the appropriate order was to dismiss the appeal and require the unsuccessful applicants to pay the state respondent’s costs.

He said while the proceedings related to issues of great importance did “not involve issues of any real legal novelty and certain did not involve the development of jurisprudence in that regard”.

There is a distinction to be drawn between proceedings that would be of interest to the public, or a section of the public and proceedings that can be genuinely regarded as public interest proceedings, he said.

“I do not believe that the present proceedings can properly be regarded as failing within the category of public interest proceedings”, the judge said.

Appeal

Waters and Doherty had appealed the High Court’s refusal to permit the two to bring their challenge and its award of costs of that hearing against them.

In their judicial review proceedings against the State and the Minister for Health, with the Dáil, Seanad and Ceann Comhairle as notice parties, the appellants had sought to have various legislative measures declared unconstitutional and flawed.

Dismissing the appeal Mr Justice Birmingham said that court was “quite satisfied” that the approach taken by the High Court in relation to their case “was the correct one”.

Last year O’Doherty and Waters sought to challenge legislation including the 2020 Health Preservation and Protection and Other Emergency Measures in the Public Interest Act; the 2020 Emergency Measures in the Public Interest Act Covid-19 Act and the 1947 Health Act (Affected Areas) Order.

They claimed the laws, and the manner in which they were enacted, are repugnant to several articles of the Constitution including concerning the rights to travel, bodily integrity and the family, and amounted to a suspension of constitutional rights.

In May 2020 Mr Justice Charles Meenan refused to grant them leave after finding their claims were not arguable.

They had not provided any expert evidence or facts to support their view the laws were disproportionate or unconstitutional, he held.

The manner in which the Houses of the Oireachtas dealt with the laws, introduced by a caretaker government and voted on by an incoming Dáil and outgoing Seanad, was not something a court could interfere with, he also said.

The High Court also ruled that the applicants must pay the respondents legal costs of those proceedings, which were heard over two days.

In their submissions to the appeal court O’Doherty, and Waters argued the High Court’s decision refusing them permission to bring their challenge against the laws was wrong and that they didn’t get a fair hearing before the lower court.

Both the state and the Oireachtas had opposed their appeals, and successfully argued before the High Court that leave should not be granted.