Court Rules Waters and O'Doherty Must Pay Legal Costs

Grainne McMahon, Content Editor (Ireland)

April 30, 2021

Journalists John Waters and Gemma O'Doherty must pay the legal costs of their failed appeal against a refusal to allow them to challenge the constitutionality of laws introduced in response to the pandemic.

In a ruling by the three-judge Court of Appeal, comprised of the court's President Mr Justice George Birmingham, Mr Justice John Edwards and Ms Justice Caroline Costello, they found that the normal rule whereby the losing side should pay the legal costs should be applied.

In March this year, the court found that the pair's appeal against the High Court's decision not to grant them leave to bring their action should be dismissed on the basis that it was misconceived and entirely without merit.

Today (Friday 30 April) Mr Justice Birmingham said that Ms O'Doherty and Mr Waters had argued that the normal rule that costs should follow the event should not apply because the action was brought in the public interest raising issues of great importance.

Mr Justice Birmingham said that for the court to depart form the normal rule there has to be something 'special, unusual or exceptional' raised and while the proceedings related to issues of great importance it did 'not involve issues of any real legal novelty and certainly did not involve the development of jurisprudence in that regard'.

The judge said a distinction should 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.

Mr Waters and Ms O'Doherty had appealed the High Court's refusal to permit the pair to bring their challenge and its award of costs of that hearing against them.

In Mr Waters and Ms O'Doherty's judicial review proceedings against the State and the Minister for Health, with the Dáil, Seanad and Ceann Comhairle as notice parties, they 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.