Supreme Court orders Attorney General to pay High Court costs but makes no order for appeal costs due to special circumstances.

THE SUPREME COURT

469/2006

59/2007

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN

MARY ROCHE

APPLICANT / APPELLANT

AND

THOMAS ROCHE, ANTHONY WALSH, DAVID WALSH

AND

SIMS CLINIC LTD.

DEFENDANTS/RESPONDENTS

AND

THE ATTORNEY GENERAL

NOTICE PARTY

RULING of the Court on the question of costs delivered by Murray C.J. on the 2nd day of March 2010

The appeal in this case was determined in favour of the first named and principal respondent for the reasons set out in

the several judgments delivered by the members of the Court on the 15th December 2009. Both the appellant and the

first named respondent (hereafter the respondent) have applied to the Court for an order that the Notice Party, the

Attorney General, be held responsible for paying the costs each of them incurred in the appeal.

At the conclusion of the High Court proceedings costs were awarded against the Attorney General in favour of both the

appellant and the respondent. The Attorney General has appealed against that decision and the appellant and the

respondent have asked the Court to uphold the decision of the High Court on the question of costs and to award to each

of them the costs of this appeal against the Attorney General. The other respondents in the proceedings did not

participate in any substantive way and were content to abide by such rulings as the Court might make in resolving the

issues between the appellant and the respondent. They have not sought any order in respect of costs.

The Attorney General, who was not originally party to the proceedings, was joined as a notice party as a result of being

served with notice of the proceedings pursuant to Order 60 Rule 2 of the Rules of the Superior Courts.

It is important to note at the outset that counsel on behalf of the Attorney General agreed, quite understandably, that in

these proceedings the Attorney General should having regard to the circumstances of the case, the nature of the issues

and the nature of his participation, in substance be considered a full party to them notwithstanding the procedure by

which he was joined. In those circumstances he also acknowledged, again quite properly, that the High Court, and this

Court on appeal, had jurisdiction to award costs in favour or against the Attorney General as it had in respect of the

other parties. Counsel differentiated the particular position of the Attorney General in this case from other cases in which

the Attorney General may appear as a Notice Party such as in a role analogous to that of an amicus curiae.

The position of the Attorney General is that this Court should set aside the order for costs made against him in the High

Court, or, alternatively, confine that order to partial costs rather than the full costs of both parties.

In seeking costs of both the High Court proceedings and the appeal the grounds relied upon by the appellant and the

respondent, and which the Court considers relevant, related to the exceptional importance of public policy and

constitutional issues which arose in the unique context of the constitutional protection which might be afforded to frozen

embryos.

It should be recalled that the appellant, who is the wife of the respondent, had fertility treatment in 2001. This resulted in

the creation of 6 viable embryos, with her husband as the donor in the fertilization of the eggs which had been removed

from her ovaries. Three of those embryos were implanted in the applicant and the remaining three were frozen. As a result

of the implantation she gave birth to a daughter in 2002. Subsequently marital difficulties arose between these two

parties and they entered into a judicial separation agreement. Subsequent to that again the appellant sought to have the

remaining embryos implanted in her womb so that she could become pregnant again and the respondent refused to

consent to such implantation. As a consequence these proceedings were commenced in order to determine the rights of

the appellant vis a vis those of the respondent in respect of the frozen embroys.

There were other issues, such as the existence or otherwise of an agreement on the part of the respondent consenting

to the implantation of the embryos, but the primary issue in this case was whether the constitutional protection for the

life of the unborn as provided for in Article 40.3.3 of the Constitution extended to the three fertilized embryos which had

been frozen and stored in a clinic. The appellant was unsuccessful in her claim of right to have the frozen embryos

implanted in her womb contrary to the wishes of her husband. Those differences between the appellant and the

respondent arose from events that occurred while they were living together as husband and wife and thus are directly

linked to their matrimonial relationship which still persists albeit the subject of a judicial separation. Litigation between

spouses on issues related to the matrimonial relationship often give rise to particular circumstances in which the Courts

consider it just and equitable to depart from the general rule of costs following the event.

The real issue concerning costs, and it is not a simple one, is whether either or both parties should have their costs

awarded to them, against the Attorney General, and if so, to what extent.

There is no doubt that the issues in this case touched on a subject matter of singular public importance. The issues

included questions of constitutional law which were profound and complex on novel aspects of both the right to life and

reproductive rights stemming from modern developments in bio-medicine which permit a frozen embryo to exist outside the

womb. In resolving these issues the Court acknowledged the moral status of the embryo and the point or circumstances

in which the constitutional protection for the life of the unborn has legal effect.

It was no doubt for all these public and constitutional policy reasons that the Attorney General decided to participate in

the proceedings to the extent to which he did.

As regards the appellant and respondent, the very existence of the frozen embryos and the fact that there was a real

issue as to the constitutional protection which they might be afforded, pursuant to Article 40.3.3, independent of the

wishes of one or other of them, rendered it inevitable that recourse would be had to the Courts to address those issues.

The appellant and the respondent had a personal or private interest in the issues and they included the alleged

contractual consent which the appellant claimed had been given by the respondent. It is clear that the issues in the case

surpassed, to an exceptional degree, the private interests of the two primary parties.

Having regard to the unique features of this case and all the special circumstances referred to above the Court is

satisfied that it would be equitable and just to depart from the normal rule that costs follow the event and that the

Attorney General should bear the costs of both parties in the High Court. As counsel for the respondent pointed out in the

course of his application the greater burden of costs was incurred in the High Court where it had been necessary for the

parties to tender extensive expert evidence having regard to the nature of the issues which arose. Nonetheless the Court

does not consider that the Attorney General should have to bear the costs of the entire proceedings. Neither does the

Court consider, again having regard to the special circumstances of the case and the matrimonial relationship between

the appellant and the respondent, that the former should be required to pay any costs to the latter. In these

circumstances the Court will make no order as to costs in respect of the appeal before this Court.

Accordingly the Court will order that the Attorney General pay the costs of both parties in the High Court for the reasons

set out above and make no order as to costs with regard to the appeal before this Court.