Killian Flood BL

About this case:

• Citation:
  [2021] IEHC 47
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Niamh Hyland

The court said that it did not have jurisdiction to grant to injunction because the court would be directing the Minister for Health to legislate in prescribed terms.

Further, even if the court did have jurisdiction, the balance of convenience weighed heavily in favour of denying the injunction sought, the judge said.

Background

The applicant in the case, the ICC, was the designated authority for the breeding and coursing of greyhounds in Ireland. Normally, the coursing season only runs between September and February, although due to Covid-19 restrictions brought in by the Government in September 2020, the season was not permitted to take place. The ICC was subsequently granted permission to hold coursing meetings during the Level 3+ restrictions in early December and the club had organised events for the remainder of the season. Twelve events took place before Christmas. However, following the Minister’s decision to move the country to Level 5 restrictions in late December, coursing was again placed on a list of banned activities.

The ICC took proceedings against the Minister for Health and the Minister for Housing, Local Government and Heritage claiming that the exclusion of coursing from the list of permitted activities during Level 5 restrictions was unlawful. The applicant sought a mandatory injunction from the court to direct the Minister for Health to grant an exemption for the ICC from the prohibition on sporting events. To support the proceedings, the applicant argued that the Minister had failed to consult other appropriate Ministers before making the decision. It was also claimed that the Minister had failed to provide reasons to the ICC on the decision to remove the exemption which had previously been enjoyed under Level 3+ restrictions in December.

The Ministers, as respondents, submitted that coursing created a higher risk of transmission of Covid-19, which justified the ban. Further, it was said that the balance of convenience strongly favoured refusing the reliefs sought because the State was attempting to protect the health of its citizens. On the issue of jurisdiction, the Respondents said that the ICC was trying to use the courts to force the Minister for Health to make new laws, which it said was impermissible.

High Court

In a judgment delivered this week, Ms Justice Niamh Hyland refused to grant the injunction. Due to the fact that mandatory injunctive relief was sought, the court said that it had to be satisfied that the applicant had advanced strong grounds for the application. Applying the test in Okunade and Friends of the Environment v. Minister for Communications [2019] IEHC 555, the court ruled that the applicant had established sufficiently strong grounds that the Minister for Health failed to consult relevant stakeholders prior to making his decision. The court noted that there was some ambiguity in the terms of section 31A of the Health Act 1947 about whether the Minister for Health had a positive obligation to consult with other Ministers before making a decision. However, the judge was satisfied that the applicant had established in principle that the Minister for Housing, Local Government and Heritage should have been consulted on the new measures and there was a strong argument that any consultation involved more than mere awareness of the proposed measures by the relevant Ministers.

Second, the applicant had established in principle that it was entitled to reasons for the decision made by the Minister for Health. The court said that there was a general obligation in administrative law to provide reasons for a decision. The applicant had also engaged extensively with the Department for Housing, Local Government and Heritage and the Department for Agriculture, Food and the Marine on the issue of an exemption prior to the Level 5 restrictions, giving further force to the claim that reasons should have been given.

However, on the issue of jurisdiction, the court ruled that the reliefs went much further than merely disapplying the existing legal framework restraining the applicant from holding sporting events. The applicant was seeking to direct the Minister for Health to give it the same exemption on prohibition as for other sports under the new regulations. This, the court said, would mean that the Minister would be directed to legislate in a particular way for a specified period of time.

The court held that an order directing the Minister to adopt a regulation which exempted the ICC from the prohibition on sporting activities was very likely to have the effect of obliging the Minister to ignore his statutory obligations under the Health Act 1947. The court reasoned that the Minister only had the power to create a restriction if he thought it would limit the spread of Covid-19. As such, if the Minister did not think that an exemption for coursing would stop the spread, “it would amount to the court effectively arrogating to itself the Minister’s power to adopt secondary legislation” under the Health Act. The court concluded that it would be making policy decisions if it granted the injunction and it was not appropriate to do so.

Finally, the court ruled that the balance of convenience clearly favoured refusing the injunction. The potentially fatal consequences of Covid-19 meant that the financial loss caused to the ICC from the refusal was far outweighed by the risk to human life. The ICC did not provide any expert evidence to show that coursing could occur without a risk of Covid spreading, while the respondents produced a report from Dr Darina O’Flanagan, special advisor to the National Public Health Emergency Team, to show that coursing would involve 3,600 entries for the rest of the season. This would mean that several thousand handlers, stewards and security officers would attend the events, which was not appropriate in the circumstances.

Conclusion

The court concluded that it did not have the jurisdiction to grant the interlocutory injunction in the case and the balance of convenience required the court to refuse the application in any event.