Why High Court Costs Were Awarded Against Gemma O’Doherty and John Waters in Covid-19 Constitutional Challenge

Gemma O’Doherty and John Waters applied to the High Court for leave by way of judicial review to challenge the constitutionality of certain measures taken by the State to deal with the Covid 19 pandemic. The measures being challenged were legislation and regulations enacted by the Oireachtais.

The High Court refused this application in May 2020 and held that they had failed to provide any expert evidence or facts to support their view that the laws challenged were disproportionate or unconstitutional. The High Court in that decision also noted that O’Doherty and Waters had

no medical or scientific qualifications or expertise, relied on their own unsubstantiated views, gave speeches, engaged in empty rhetoric and sought to draw parallel to Nazi Germany which is both absurd and offensive”.

Unsubstantiated opinions, speeches, empty rhetoric and a bogus historical parallel are not a substitute for facts,

High Court, May 2020

Read the full decision of 13th May 2020 here.

O’Doherty and Waters went back to the High Court to avoid the costs of the judicial review application being awarded against them. The grounds on which they resisted orders for costs against them included

  1. They should have been allowed to proceed on an ex parte basis and the respondents and notice parties should not have been put on notice of their application
  2. The Oireachtais did not have to be separately represented
  3. Their application was in the public interest
  4. They were entitled to a “protective costs order”

The High Court recognised that the principal ground that was contended for by O’Doherty and Waters was that they brought the proceedings “in the public interest” and they should not be penalised for having done so.

The High Court held that “this contention does not stand up to much scrutiny” and that they failed to engage with the case being made by Ireland, the Attorney General, and the Minister for Health.

The High Court determined that the issues raised by the widespread restrictions and the legislation and regulations introduced where important matters of public interest.

There is no doubt but that issues raised by the widespread restrictions imposed by the legislation and regulations in question are important matters of public interest.

However, the manner in which the applicants conducted their proceedings, their failure to consider or answer the case being made against them and to only have regard to their own opinions meant that these proceedings were very far from being in the public interest.

High Court, June 2020

For this reason Mr. Justice Meenan determined that there no grounds for the Court to depart from the general rule that “costs follow the event”. He granted the respondents (the Minister for Health, Ireland and the Attorney General) and the notice parties (Dail Eireann, Seanad Eireann and an Ceann Comhairle) their costs and dismissed the application of O’Doherty and Waters.

Read the full decision of 4th June 2020 here.