Court of Appeal costs awarded against Gemma O’Doherty and John Waters

The Court of Appeal has delivered its verdict on the question of costs in the Gemma O’Doherty & John Waters and The Minister for Health and Ireland and the Attorney General case concerning the constitutionality of measures introduced by the State to deal with the Covid 19 pandemic.

O’Doherty and Waters lost their appeal to the Court of Appeal of the decision of the High Court to refuse them leave to a judicial review of the introduction of certain laws and regulations concerning coronavirus.

The long-standing rule concerning costs is that costs follow the event.

That means the loser must pay and this rule has been given a statutory basis by the Legal Services Regulation act 2015.

A Court has discretion, however, to depart from this position if there is something exceptional or special or unusual about the case.

The Court of Appeal was not persuaded by the arguments of Waters and O’Doherty that their case was one for departing from the ordinary rule. It noted that the respondents and notice parties had to devote time and resources to dealing with the case, notwithstanding that Waters and O’Doherty were lay litigants.

The Court was not persuaded by the argument of public interest, either, as the proceedings did not involve issues of any real legal novelty.

The Court drew a distinction between proceedings which would be of interest to the public as distinct from proceedings that can be genuinely regarded as public interest proceedings.

The order made was to dismiss the appeal and require O’Doherty and Waters to pay the costs of the respondents and notice parties of the appeal.

The three man court comprised Edwards J, Costello J, and Bermingham P. The full decision can be read here.