RAI challenge over ‘irrational’ indoor dining regulations adjourned to October

The action by the Restaurants Association of Ireland (RAI) and three restaurants over “irrational” regulations which permitted indoor dining within hotels while preventing indoor dining in non-hotel commercial restaurants has been adjourned at the High Court to October.

The adjournment was granted by Mr Justice Anthony Barr on consent of the sides when the matter was briefly mentioned in court on Thursday.

Michael McDowell SC, with Arthur Griffin, instructed by solicitor Georgina Robinson, said that, arising from new legalisation concerning indoor dining, it was not clear what the remaining issues in these proceedings would be.

In the circumstances, the sides had agreed to the matter being adjourned for mention to October and that any hearing which proceeds will be a telescoped hearing, involving a merger of the application for leave to bring the judicial review proceedings and the hearing itself.

Caren Geoghegan, for the respondents, consented to the adjournment.

When the application for leave to bring the judicial review proceedings first came before the court on June 21st, Mr Justice Charles Meenan noted the Government’s intention (at that point) was to lift the regulations on July 5th if the Covid-19 situation permitted.

He directed the leave application be made on notice to the Minister and returned the matter to July 8th, when it was again adjourned to July 22nd.

In the interim, the Government prepared regulations for reopening indoor dining in non-hotel commercial restaurants and the relevant legislation was signed this week by President Michael D Higgins. Indoor dining is set to resume on Monday.

The action was initiated by the RAI, a representative body for the restaurants of Ireland; Boxty House Ltd, a restaurant operator of Temple Bar, Dublin 2; Esquires Coffee Houses Ltd, which operates cafes and has registered offices at Ballybrit, Galway; and Sarsfield Taverns Ltd, which operates a pub/restaurant and has registered offices at Mallow Street, Limerick.

The challenge arises from regulations made via statutory instruments under the Health Act, as amended, which the Government had initially intended, under its plan for opening up the country as the Covid-19 situation permits, to lift on July 5th.

In an affidavit, RAI chief executive Adrian Cummins said its members had been “greatly disadvantaged and are incurring major economic loss by reason of the irrational regulations”.

Mr McDowell previously told the court his side maintained, whether the regulations were lifted or not, there was no legal basis for them and they wanted an opportunity to make their case the regulations “are unlawful and should not be repeated”.

The applicants, he stressed, fully accept the need for restrictions to stop the spread of Covid-19 but contended the restrictions on them, compared with those on hotels and B&Bs, are irrational and disproportionate, amount to unjustified interference with their economic interests and in excess of the Minister’s powers.

Other concerns include that the regulations failed to have any regard to the nature, size or ventilation of indoor restaurant facilities, whether in hotels or elsewhere, he outlined.