O'Doherty & Anor v The Minister for Health & Ors (Approved)

Accordingly, so far from choosing or electing as between the range of responses (which it must again be stressed, as unelected personages, we would have no competence or democratic authority to do) our sole task as judges is to measure the legislative and administrative response to the crisis against the requirements of the Constitution itself. It is against that background that this application for leave to apply for judicial review must be considered.

Much of the rest of the grounding statement, however, adopts the conventional style of the pleader with which all members of the Court are thoroughly familiar. Beyond, indeed, their frequent assertion in the grounding statement and affidavit that there was no �clinical� basis for any of these legislative measures, I find little enough in either their grounding statement or subsequent affidavit which is objectionable. (This is not, of course, to be understood as an endorsement of their respective contents.)

The difficulty, I think, which arises in this case comes from the actual manner in which the applicants have conducted the litigation. A flavour of this may be gauged from the judgment of Meenan J (at paragraph 56) in the High Court:

Much the same objection is to be found in the judgment of Birmingham P in the Court of Appeal (at paragraph 32 of the judgment):

The remainder of this judgment is accordingly directed exclusively to the second aspect of the applicants� case. This aspect of their case necessarily assumes the existence of a real and grave public health emergency from about March 2020 onwards. This part of their challenge raises the question of whether the 2020 legislative measures which were adopted in response to this emergency are nonetheless disproportionate and unconstitutional.