Browne and Others v an Taoiseach and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 25 April 2023
• Neutral Citation: [2023] IEHC 205
• Docket Number: Record No. 2022/1456 P
• Court: High Court

Between

Sharon Browne, David Egan and Emmanual Lavery

Plaintiffs

and

An Taoiseach, The Minister for Health and The Health Service Executive

Defendants

[2023] IEHC 205

Record No. 2022/1456 P

THE HIGH COURT

Costs – Protective costs order – Abuse of court process – Plaintiffs seeking a protective costs order – Whether costs should follow the event

Facts: The plaintiffs, Ms Browne, Mr Egan and Mr Lavery, claimed that the third defendant, the Health Service Executive (the HSE), had been guilty of the mass killing of children in Ireland by administering the Covid-19 vaccine. The plaintiffs claimed that the Covid-19 vaccine was a ‘bio-weapon'. Based on those claims, the plaintiffs issued proceedings on 11th April, 2022 seeking a court order halting the Covid-19 vaccine programme throughout Ireland for children aged 5-11. In addition, the plaintiffs also sought the mass disinterment of the bodies of all vaccinated people under 80 who died suddenly in the past 2½ years, so that they could be subject to a specific type of autopsy demanded by the plaintiffs. They also sought orders for a full public Commission of Inquiry to be set up by the State into the use of early treatments for Covid-19. After the plaintiffs issued the proceedings, but before they filed a Statement of Claim, they issued a Notice of Motion dated 14th November, 2022 seeking a ‘protective costs order’. The plaintiffs wanted to be ‘protected’ from having a costs order made against them in favour of the defendants, if the plaintiffs lost their case.

Held by the High Court (Twomey J) that since the plaintiffs had, by a long way, failed to comply with the several conditions which had to be satisfied for the grant of a protective costs order, no such order would be granted. Twomey J held that this was the type of case where having a threat of a negative costs order was imperative, in order to ensure that litigants do not waste court resources and waste the opposing party’s funds (whether a private party or a taxpayer funded entity). Accordingly, Twomey J held that if the plaintiffs continued with the case, and if they lost the substantive action, then on the basis of ‘the loser pays’ principle, they were likely to be personally liable for the costs of the defendants, in dealing with thousands of pages of wide-ranging, scandalous, unprecedented and unsubstantiated claims, orders and ‘evidence’ which formed part of their case. However, Twomey J held that this would be a matter for the trial judge, should the plaintiffs continue with their action.

Twomey J held that, applying the default rule that costs follow the event, the State defendants had been ‘entirely successful’ (pursuant to s.169 of the Legal Service Regulation Act 2015) and so the Court’s provisional view was that they should be awarded their costs against the three plaintiffs. As required by the Supreme Court, the High Court proposed using the costs of the proceedings to date to discourage, in the strongest manner possible, any further abuse of court process by the plaintiffs. Accordingly, it was the Court’s provisional view that: costs should be awarded against the plaintiffs in favour of the defendants for the unsuccessful application for a protective costs order; those costs should be measured by the Court, rather than having them adjudicated by the Office of the Legal Costs Adjudicators (as costs adjudication might lead to a considerable delay) and the Court would hear from the parties regarding the appropriate sum to be so measured; only one set of costs should be awarded to the defendants as the interests of the two sets of defendants were completely aligned and so while the contributions of both teams were of value to the Court, the losing plaintiffs should not be burdened with effectively having to pay on the double for losing their application; no stay should be put on the costs, in order to enable the defendants ‘to take the appropriate steps to enforce’ the payment, as soon as possible’ and the manner and timing of any enforcement of those costs by the defendants against the plaintiffs was a matter for further submission.

Application refused.

JUDGMENT OF Mr. Justice Twomey delivered on the 25 ^th day of April, 2023

SUMMARY

1 . In these proceedings, the plaintiffs make, what the defendants have described as, ‘ scandalous’ and ‘alarmist’ claims that the HSE has been guilty of the mass killing of children in Ireland by administering the Covid-19 vaccine. The plaintiffs claim that the Covid-19 vaccine is a ‘bio-weapon’ and they compare the defendants' actions in administering the Covid-19 vaccine to the actions of the Nazis during World War II. Based on these extraordinary claims, the plaintiffs issued proceedings on 11 ^th April, 2022 seeking a court order halting the Covid-19 vaccine programme throughout Ireland for children aged 5 – 11.

2 . In addition to wanting to halt the vaccine programme, the plaintiffs are also seeking other unprecedented court orders, i.e. the mass disinterment of the bodies of all vaccinated people under 80 who died suddenly in the past 2 ¹/₂ years, so that they can be subject to a specific type of autopsy demanded by the plaintiffs. They are also seeking orders for a full public Commission of Inquiry to be set up by the State into the use of early treatments for Covid-19.

3 . As well as the claims of mass killing, the plaintiffs make other breath-taking claims in circa 5,000 pages of affidavits and exhibits. They claim that the Covid-19 vaccine inserts nano-chips into recipients of the vaccine and that the use of the Covid-19 vaccine ‘bio-weapon’ is part of a plan by Bill Gates to depopulate the world. The alleged ‘evidence’ for all of the plaintiffs' claims is a combination of hearsay, speculation, commentary, questions, internet sites, blogs, YouTube videos, etc.

4 . While it is a fundamental right of every individual to have their rights vindicated in court, a legitimate issue for consideration is the extent to which taxpayers' money (where the other party to the litigation is a State agency) and scarce court resources (to the detriment of other litigants waiting for their cases to be heard) should be expended in dealing with scandalous allegations, which amount to an abuse of court process. This is clear from the Supreme Court decision in Tracey t/a Engineering Design & Management v. Burton [2016] IESC 16 at para. 45, where it was held that the use of court time is not solely a matter for litigants, as there is a strong public interest in how court time is used. Thus, while, subject to defamation laws, the plaintiffs are perfectly free to express, on the internet and elsewhere, their views on conspiracies regarding the Covid-19 vaccine, it is a separate matter whether they should be facilitated in making those claims in court.

5 . In analysing this issue, against the backdrop of the important right of every citizen to have access to the courts, this judgment considers one of the few tools available to the courts to discourage unmeritorious litigation and the abuse of court process, i.e. costs orders. Discouraging such litigation is a matter of considerable significance as unmeritorious and scandalous litigation is not a cost-free exercise. Firstly, it is at a cost to the taxpayer, where a State agency has to deal with such claims, particularly where taxpayers' funds could be spent on more worthwhile causes than on legal costs defending such litigation. This is a point of considerable practical relevance, since the State is the most frequent litigant before the courts. Secondly, such litigation is also a waste of court resources (which are also funded by the taxpayer).

6 . These issues came before this Court by means of a preliminary application. This is because the plaintiffs raised, at an early stage in these proceedings, the question of who was going to pay the defendants' legal costs if the defendants were successful in defeating the plaintiffs' claim. Would the plaintiffs be liable for the defendants' costs, in accordance with the normal rule that ‘costs follow the event’ or would the State defendants ( i.e. the taxpayer) have to pay their own costs even if the defendants won? This preliminary issue was raised by the plaintiffs because, after they issued the proceedings, but before they filed a Statement of Claim, they issued a Notice of Motion dated 14 ^th November, 2022 seeking a ‘ protective costs order’. The plaintiffs want to be ‘protected’ from having a costs order made against them in favour of the defendants, if the plaintiffs lose their case. In plain English therefore, the plaintiffs want an order from this Court that they should be paid by the State to take an unmeritorious claim against the State. This is because an applicant for a protective costs order is only concerned with the costs position where that applicant loses his/her case.

7 . For the reasons set out below (including this Court's finding that the plaintiffs' claim has no prospect of success), this Court rejects the plaintiffs' application for a protective costs order. Accordingly, if the plaintiffs continue with this litigation, they will not do so ‘for free’ but, like practically every other litigant, they will be subject to the principle that the ‘loser pays’ the costs of the winning party.

Effectively discouraging scandalous litigation and the abuse of court process?

8 . However, more significant perhaps, in light of the scandalous nature of the allegations being made in these proceedings, is the issue of who is going to pay for the very considerable taxpayer funds (probably in the tens of thousands of euro) which have already been expended to datein dealing with this (now unsuccessful) application for a protective costs order. There is the more significant issue of the court resources and taxpayers' funds which will be expended in the future (possibly in the hundreds of thousands of euro)...