State entitled to costs in abortion referendum legal challenge

The State and Referendum Commission are entitled to their legal costs, estimated at more than €200,000, of successfully opposing two separate bids to challenge the abortion referendum result, the president of the High Court has ruled.

One of the two, Joanna Jordan, said she intends to appeal the refusal to let her bring a petition challenging the result. In that context, a stay applies until at least Friday preventing the referendum result being formally certified.

On Tuesday, Mr Justice Peter Kelly said the State and Commission are entitled to their legal costs against Charles Byrne, whose application involved both.

He ruled the State was also entitled to its costs against Joanna Jordan, whose case only involved State parties.

Because Mr Byrne is not pursuing an appeal over the dismissal of his application for permission to bring a petition challenging the referendum outcome, and the court was told his only asset is a piano, the judge recommended the State and Commission might consider not pursuing him for costs.

The State would be saved further costs due to Mr Byrne having brought an end to the matter, he noted.

As Ms Jordan had said she will appeal, he would not make the same recommendation, the judge said.

Alan Davoren, solicitor for Ms Jordan, asked, in the context of her intended appeal, that a stay be applied until Friday on the referendum result coming into effect.

Mr Davoren is reserving his position concerning whether he will continue to act for Ms Jordan after Friday, the court heard.

Stay

The judge agreed to grant the stay until Friday on the result being certified so as to facilitate her constitutional entitlement to go to the Court of Appeal.

The State consented to a stay in those limited terms and any further stay will be a matter for the appeal court, he noted.

He also granted a stay until Friday on the costs order against Ms Jordan.

Both Ms Jordan, a homemaker, from Dun Laoghaire, Co Dublin, and Mr Byrne, a musician, of College Rose, Drogheda, Co Louth, had sought to have the State pay their costs but the judge ruled there were no special circumstances entitling them to such orders.

The State and Commission sought their costs against Mr Byrne and the State also sought its costs against Ms Jordan.

In his costs ruling, the judge said both applicants had argued the importance of the referendum decision was among several factors to justify departing from the normal rule that costs are paid by the losing party.

While a decision of the people may have fatal consequences for as yet unconceived human beings, that was the issue in the referendum, not in this case, the judge said.

Prima facie evidence

The Referendum Act required the applicants to put prima facie evidence before the court of matters described in the Act but they had not. They both failed to produce evidence of various matters complained about, including alleged electoral irregularities and alleged unlawful government interference in the campaign.

Neither had shown any of the matters complained of would, as the Referendum Act required, “materially” affect the outcome, he said.

Given the size of the yes vote, he agreed it would be difficult to meet that requirement.

The applicants also failed to show the cases raised novel legal issues of far reaching public importance.

The Supreme Court’s Mr Justice Donal O’Donnell had, in his judgment on the earlier challenge by Ms Jordan to the Children’s Referendum, expressed hope it would be possible to limit legal challenges to referendums to those with a “real likelihood” of setting aside a referendum result, he noted.

Having considered the lack of evidence in these two cases, there was never a real likelihood of setting aside the result, Mr Justice Kelly said.

Earlier, the judge was told Mr Byrne is not pursuing an appeal over the dismissal of his application for leave to bring a petition.

That meant a stay on the referendum Returning Officer certifying the May 25th referendum result would lapse as of Tuesday. However, later on Tuesday, the judge agreed to grant a stay in similar terms to Ms Jordan on foot on her informing the court she intended to appeal.