Mary Roche v Thomas Roche and Others

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 02 March 2010
• Neutral Citation: [2010] IESC 10
• Docket Number: 469/2006
• Court: Supreme Court
• Date: 02 March 2010

Roche v Roche & Ors

BETWEEN

MARY ROCHE

APPLICANT/APPELLANT

AND

THOMAS ROCHE, ANTHONY WALSH, DAVID WALSH

AND

SIMS CLINIC LTD.

DEFENDANTS/RESPONDENTS

AND

THE ATTORNEY GENERAL

NOTICE PARTY

[2010] IESC 10

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

469/2006

59/2007

THE SUPREME COURT

PRACTICE & PROCEDURE

Costs

Notice party - Attorney General - Constitutional protection - Embryos Substantive appeal determined in favour of first respondent - Whether costs order should be made against notice party - Whether justification for departure from rule that costs follow event - Point of exceptional public importance - Whether special circumstances - Relationship between appellant and first respondent - Rules of the Superior Courts (No. 15/1986), O 60, r 2 - Constitution of Ireland, 1937, Article 40.3.3 - Costs of High Court awarded against Attorney General but no order as to costs in relation to the appeal (469/2006 & 59/2007 - SC - 2/3/2010) [2010] IESC 10

Roche v Roche and SIMS Clinic Ltd and Attorney General

Facts The High Court case involving the husband and wife in this case involved a constitutional issue surrounding the retaining of embryos by the wife, who had separated from her husband to be retained so that she could become pregnant in the future. The husband refused consent to such implementation. At the conclusion of the case the court awarded costs against the Attorney General. The Attorney General appealed that decision to the Supreme Court.

Held by Murray CJ (Denham J; Hardiman, Geoghegan and Fennelly JJ concurring) in declining the appeal:

The constitutional issues before the High Court were profound and complex on novel aspects of the right to life and reproduction.

The existence of the frozen embryos and the constitutional protection they might be afforded under Article 40.3.3 rendered it inevitable that the issues would have to be resolved by the courts.

There was no doubt the case involved a subject matter of singular public importance.

Reporter: BD

RSC O.60 r2

CONSTITUTION ART 40.3.3

Murray C.J.

1 Ruling of the Court on the question of costs delivered by Murray C.J.

2 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 15^th 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.

3 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.

4 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.

5 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...