State to pay most of Marie Fleming’s legal costs

Fleming had asked Supreme Court for an order for costs, despite failing in her action

The State has consented to orders meaning it will pay most of the substantial legal costs of the unsuccessful challenge by Marie Fleming to the law making it an offence to assist a suicide.

As Ms Fleming died last month, some eight months after the Supreme Court dismissed her action, the court agreed today to an application by her counsel not to formally draw up the costs orders until her estate has been constituted.

Earlier, on the application of Ronan Murphy SC, for Ms Fleming, and with the consent of Shane Murphy SC, for the State, the court agreed to affirm an order made by the High Court awarding Ms Fleming costs against the State of the High Court hearing.

The court also agreed to make another order awarding Ms Fleming half of the costs of her Supreme Court appeal against the State.


In submissions provided to the court, lawyers for Ms Fleming had asked the seven judge court to exercise its exceptional jurisdiction to make an order for costs in favour of Ms Fleming despite the fact she had failed in her action.

Ms Fleming (59), who was living Co Wicklow, died last month. When she initiated her court action, she was in the final stages of Multiple Sclerosis sought orders permitting her to be lawfully assisted to have a peaceful and dignified death at a time of her choice without the risk of prosecution for anyone who helped her.

A three judge High Court rejected her case in January 2013 after which she appealed to the Supreme Court against the findings the blanket ban on assisted suicide set out in Section 2.2 of the Criminal Law (Suicide) Act 1993 did not breach her rights under the Constitution and European Convention on Human Rights.

She did not appeal against the High Court’s finding that the DPP had no power to issue guidelines as to what factors would be considered when deciding whether or not to prosecute cases of assisted suicide. The High Court had said it hoped the DPP would adopt a “humane” approach in Ms Fleming’s case.

Last April, the seven judge Supreme Court ruled the right to life under the Constitution “does not import a right to die” in what it described as this “very tragic case”.

The court noted suicide was decriminalised here under the Criminal Law (Suicide) Act 1993 but Section 2.2 made it an offence to assist a suicide.

The fact suicide ceased to be a crime did not establish a constitutional right to suicide and there was "no explicit right" in the Constitution to either commit suicide or determine the time of one's own death that the State and courts must protect and vindicate, the Chief Justice, Ms Justice Susan Denham, said when giving the court's judgment.

The right Ms Fleming claimed necessarily extended to a right to have life terminated by another in a case of total incapacity, “would sweep very far indeed”, she added.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times