Gemma O'Doherty and John Waters to appeal court's dismissal of legal action

The High Court refused to grant them permission to challenge laws introduced by the State due to the Covid-19 pandemic.

JOHN WATERS AND Gemma O’Doherty are to appeal the High Court’s refusal to grant them permission to challenge laws introduced by the State due to the Covid-19 pandemic. 

The High Court heard of their intention to appeal Justice Charles Meenan decision today when hearing arguments as to who should pay the legals costs of their action against the State and the Minister for Health, and where the Dáil, the Seanad and the Ceann Comhairle were notice parties.

When making submissions to the court on the issues of costs both O’Doherty and Waters said they would be appealing the courts refusal to grant them leave to the Court of Appeal.

They argued that the court should not order them to pay the states or or the notice parties legal costs, on grounds including that their action was brought in the public interest. 

Patrick McCann SC, appearing with Gerard Meehan Bl, for the State said the applicants should pay their legal costs, and rejected the argument that the proceedings were brought in the public interest.

Counsel added that the regulations challenged had been brought in to “protect life and to protect public health. The object of the action was contrary to that”. 

There were no exceptional circumstances raised by the applicants that would allow the court deviate from the normal rule that the losing party should pay the costs of the proceedings. 

Francis Kieran Bl for the notice parties argued that his clients were also entitled to have their legal costs paid for by the applicants. Counsel added that the applicants had “fallen at the first hurdle and would not have won the race”.

Counsel said that his side’s involvement was necessary given the nature of the proceedings.

‘Destruction of our society’

Waters, urging the court not to make a costs orders against him or Doherty, said that the case had not been taken over what he said was “a personal grievance”.

The action had been taken in the public interest given the draconian, unconstitutional and unprecedented nature of the laws challenged.

He also told the court that the consequences of the lockdown, which he said will be seen in the coming weeks and months, would result in the “destruction of our society”.

Doherty in her submissions said that she had been vindicated in many of the arguments she had made to the court about the laws challenged, and said that gardaí had recently stated that some of the lockdown laws were unenforceable.

She herself had been detained by gardaí when travelling to court, and added that the lockdown had resulted in the closure of 85% of Irish businesses and a huge increase in the numbers of unemployed.  

During the hearing Doherty rejected Justice Meenan’s contention that some of her submissions were speeches and “utterly pointless” in relation to the issues of costs.  

She told the court that “the courts belongs as much to me as they do to you “.

After hearing submissions from the parties the Judge said he would issue a written ruling on the issue of costs in the coming days.

Judgement

In his judgment earlier this month dismissing their application the judge said they had not provided the court with any expert evidence or facts to support their view that the laws challenged by the applicants were disproportionate or unconstitutional. 

The laws brought in by the state to help deal with the pandemic he said in his judgment are “constitutionally permissible”. He also found the case was unstateable.

The applicants he said who have “no medical of 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,” he added.   

In judicial review proceedings against the State and the Minister for Health the applicants sought to have various pieces of recently enacted legislation, which they say are unconstitutional and flawed, quashed by a judge of the High Court.

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They also wanted the court to make a declaration that the legislation challenged was unconstitutional.

Both the State respondents and the notice parties opposed the application for leave.

Refusing to allow the case go to a full hearing Justice Meenan ruled that the applicant’s claims were not arguable and the court could not grant them permission to have their challenge determined at a full hearing of the High Court.

The judge said that while the laws have interfered with everyone’s lives he did not accept the applicant’s claim that the legislation breached various articles of the Constitution concerning the family and social policy rights and the right to freedom of movement.  

Justice Meenan also dismissed the applicant’s claims against the manner in which the laws were voted on and passed by the houses of the Oireachtas. 

How the houses dealt with the laws, the judge said, was not something a court could interfere with. 

To do so would amount to a clear breach of the separation of powers, he added. 

O’Doherty and Waters, who represented themselves, challenged 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, The 1947 Health Act (Affected Areas) Order.

Their proceedings were also aimed at striking down temporary restriction regulations brought due to Covid-19 under the 1947 Health Act. 

They claimed the laws, and the manner in which they were enacted, are repugnant to several articles of the constitution including rights to travel, bodily integrity and the family. 

The laws, they further argued, amount to “an unprecedented” suspension of constitutional rights.