Trusted by the judiciary, government lawyers, prosecutors, and many leading counsel. Click here to request a subscription.
Trusted by the judiciary, government lawyers, prosecutors, and many leading counsel.
Click here to request a subscription.
Mother entitled to her costs where central issue was the medical confidentiality of her son
|
or click here to request site subscription to search and view all judgments |
Court of Appeal allows appeal and overturns decision of the High Court refusing the appellant's application for her costs incurred in a substantive plenary hearing in which the central issue was whether a doctor was entitled to breach the medical confidentiality of her patient, who was a minor and the son of the appellant, without his consent and against his wishes, and grants her the costs of the proceedings, on the grounds that: (a) the trial judge fell into error in characterising the appellant as being reduced to merely a witness as to fact that did not require legal representation as the appellant's submissions played a significant part in satisfying the Court that the breach of her son's patient confidentiality ought not to be granted; (b) the appellant's presence in the proceedings was necessitated by virtue of the constitutional framework and by the respondent's decision to make her a full defendant in the proceedings; and (c) there was no legitimate basis to deviate from the principle that costs follow the event in circumstances where the trial judge was mandated by statute to make an order for costs in the matter in the same way as the Court would otherwise make had she not been in receipt of legal aid.
Whelan J (nem diss): Appeal of a decision of the High Court to make no order as to costs in a substantive plenary hearing - the central issue in the plenary hearing was whether a doctor was entitled to disclose the HIV status of her patient, A, who was a minor and the son of the appellant, without his consent and against his wishes to a person with whom the doctor believed he was having unprotected sex and who consequently was believed to be at risk of contracting HIV - the appellant was the mother of A and adopted the same position as him and opposed the relief sought - the appellant was joined by the respondent to the proceedings at their commencement - in the substantive hearing, the Court held that no basis had been established in the circumstances to justify a breach of A.’s confidentiality - C sought her costs of the proceedings as a successful defendant - Order 99 of the Rules of the Superior Courts - whether the appellant was entitled to her costs - s. 33(2) of the Civil Legal Aid Act 1995 - whether the appellant was correctly characterised by the trial judge as a mere witness as to fact - whether the trial judge correctly applied Section 33 of the Civil Legal Aid Act 1995 - whether costs should have followed the event - a potential injustice would be visited on the appellant mother if an order for costs was not made in her favour in all the circumstances of the case - trial judge mandated by statute to make an award of costs - appeal allowed - appellant awarded the costs of the proceedings, including all reserved costs, when ascertained, against the respondent.
Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.
