The Irish Coursing Club v The Minister for Health

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Niamh Hyland
Judgment Date25 Jan 2021
Neutral Citation[2021] IEHC 47
Docket NumberRECORD NUMBER: 2021 2 JR

[2021] IEHC 47

THE HIGH COURT

Niamh Hyland

RECORD NUMBER: 2021 2 JR

BETWEEN
THE IRISH COURSING CLUB
APPLICANT
AND
THE MINISTER FOR HEALTH AND THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE
RESPONDENTS

Interlocutory injunction – Exemption – Prohibition – Applicant seeking an interlocutory injunction directing the first respondent to make regulations providing for an exemption for the applicant from the prohibition on sporting events until the proceedings were substantively determined – Whether the High Court had jurisdiction to grant a mandatory injunction directing the first respondent to legislate in prescribed terms

Facts: The applicant, the Irish Coursing Club, by Notice of Motion dated 6 January 2021, sought various reliefs including an Order of Certiorari setting aside the decision of the first respondent, the Minister for Health, delisting the applicant and its sport of coursing from a list of sports permitted to occur. On 4 January 2021 Barton J granted the application leave to issue the judicial review proceedings and directed that the applicant be given liberty to move relief no. (n) as per the Statement of Grounds having regard to the urgency of the matter. There were various reliefs sought in the Statement of Grounds: “A. An Order of Certiorari by way of an application for judicial review setting aside the decision of the First Respondent to delist the Applicant and its sporting activities from the permitted list of sports as set forth at Article 10 in Statutory Instrument No. 701/2020 and/or any replacement or equivalent regulations providing for such a list and made by the First Respondent pursuant to the Health Act 1847, as amended. B. An Order of Mandamus by way of an application for judicial review requiring the First Respondent to reinstate the Applicant and its sporting activities in the list of sports permitted to operate, in the like manner as greyhound, horse racing and horse sports are presently so permitted. ...N. An Interlocutory Injunction by way of an application for a judicial review requiring the First Respondent to permit the Applicant and its sporting activities to continue in operation in the like manner of greyhound racing, horse racing and horse sport (i.e. “behind closed doors”) as so provided for at Article 10 of SI No701/2020 pending the determination of the within application for a judicial review”.

Held by the High Court (Hyland J) that at least certain of the grounds of challenge advanced by the applicant were sufficiently strong to meet the requisite test. Hyland J held that she had no jurisdiction to grant a mandatory injunction directing the Minister to legislate in prescribed terms. She held that even if she did enjoy such a power, the balance of convenience and risk of injustice dictated that no such power should be exercised on the facts of this case.

Hyland J refused the relief sought.

Relief refused.

JUDGMENT of Ms. Justice Niamh Hyland delivered on 25 January 2021
Summary of Decision
1

This is an application for an interlocutory injunction directing the Minister for Health to make regulations providing for an exemption for the applicant from the current prohibition on sporting events until these proceedings are substantively determined. For the reasons set out in this judgment, I find that (a) at least certain of the grounds of challenge advanced by the applicant are sufficiently strong to meet the requisite test; (b) I have no jurisdiction to grant a mandatory injunction directing the Minister to legislate in prescribed terms; (c) even if I did enjoy such a power, the balance of convenience and risk of injustice dictate that no such power should be exercised on the facts of this case. Accordingly, I refuse the relief sought.

Background
2

By way of background, the Irish Coursing Club (“the applicant”) is an organisation designated by the Greyhound Industry Acts 1958-2019 as the controlling authority for the breeding and coursing of greyhounds in Ireland. Under the Wildlife (Wild Mammals) (Open Seasons) Order 2005, S.I. No. 550/2005, the sport of coursing can take place between 26 September and 28 February each year. The 2020/2021 season of coursing was affected by the arrival of the COVID-19 virus, and coursing is not currently permitted to take place, whether “behind closed doors” or otherwise. These proceedings concern the decision of the Minister for Health to remove the applicant and its sport of coursing from a list of sporting events permitted, by way of exemption, to occur behind closed doors during the current COVID-19 “lockdown” period.

The Proceedings
3

By Notice of Motion dated 6 January 2021 the applicant sought various reliefs including an Order of Certiorari setting aside the decision of the Minister for Health delisting the applicant and its sport of coursing from a list of sports permitted to occur. On 4 January 2021 Barton J. granted the application leave to issue the judicial review proceedings and directed that the applicant be given liberty to move relief no. (n) as per the Statement of Grounds having regard to the urgency of the matter.

4

There are various reliefs sought in the Statement of Grounds. For these purposes it is necessary to set out the following:

“A. An Order of Certiorari by way of an application for judicial review setting aside the decision of the First Respondent to delist the Applicant and its sporting activities from the permitted list of sports as set forth at Article 10 in Statutory Instrument No. 701/2020 and/or any replacement or equivalent regulations providing for such a list and made by the First Respondent pursuant to the Health Act 1847, as amended.

B. An Order of Mandamus by way of an application for judicial review requiring the First Respondent to reinstate the Applicant and its sporting activities in the list of sports permitted to operate, in the like manner as greyhound, horse racing and horse sports are presently so permitted.

N. An Interlocutory Injunction by way of an application for a judicial review requiring the First Respondent to permit the Applicant and its sporting activities to continue in operation in the like manner of greyhound racing, horse racing and horse sport (i.e. “behind closed doors”) as so provided for at Article 10 of SI No 701/2020 pending the determination of the within application for a judicial review”

5

A verifying affidavit was sworn by Mr D.J. Histon, CEO of the applicant on 4 January 2021. Replying affidavits were sworn by Mr John Fitzgerald, Principal Officer in the Department of Housing, Local Government and Heritage on 14 January 2021, Ms Eilis O'Connell, Assistant Secretary in the Department of Agriculture, Food and the Marine on 15 January 2021, Mr Seamus Hempenstall, Principal Officer in the Department of Health on 14 January 2021, and Dr Darina O'Flanagan, special advisor to the National Public Health Emergency Team on 15 January 2021. Mr. Hempenstall swore a supplemental affidavit on 20 January 2021. An undated second affidavit of Mr Histon was provided in response to the affidavits of the respondents and a third affidavit was sworn by Mr. Histon on 18 January 2021.

Chronology of relevant events
6

From 27 March 2020, the Irish Government introduced “stay at home” or “lockdown” measures across the State for the purpose of preventing, limiting, minimising or slowing the spread of COVID-19.

7

On 15 September 2020, the Government published a framework document Resilience and Recovery 2020-2021: Plan for Living with COVID-19” which set out a number of proposed restrictions (dividing them into 5 Levels) based on public health needs. This document envisaged that no matches or sporting events were to be permitted in Levels 3, 4, or 5 but that there would be an exemption for certain professional and elite sports and horseracing to be carried out “behind closed doors”.

8

On 5 October 2020, the Government decided that the State should be moved to Level 3 Restrictions. The regulations reflecting Level 3 adopted at this point in time prohibited sporting events but granted certain exemptions to various sporting events, including those where every person participating in the event was involved in the training and preparation of greyhounds for events held under the authority of Rásaíocht Con Éireann, the authority charged with regulating greyhound racing and who enjoys certain statutory functions in respect of the applicant. The applicant took the view that it was permitted to continue to hold coursing meetings as it was doing so under the authority of Rásaíocht Con Éireann. However, the Department of Housing, Local Government and Heritage did not take the same view and correspondence ensued during the month of October between the applicant and the Department. Ultimately, after the Department temporarily suspended the licenses permitting coursing, the applicant accepted that it was not entitled to hold coursing meetings at that time.

9

Further regulations were adopted on 22 October after the country moved to Level 5 restrictions. No exemption was provided to the applicant under those regulations.

10

On 11 November 2020, the applicant made submissions to the Department of Agriculture, requesting that coursing be included when the country exited from Level 5 restrictions. As may be seen from the summary of regulations below, the applicant was in fact granted an exemption from the prohibition on holding sporting events when the country went into Level 3+ on 1 December 2020. The applicant accordingly organised its events for the remainder of the season. Twelve such events took place before Christmas. On 22 December 2020, a collective decision was made by the Government that the State should move to Level 5 restrictions per the “ Plan for Living with COVID”. The regulations reflecting that decision removed the applicant's exemption from the prohibition, meaning it could not hold any...

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