A High Court judge has said he sees no point in fixing a hearing date for the action by businessman Declan Ganley over Covid-19 level 5 restrictions, now lapsed, which prevented him attending Mass.
Mr Justice Charles Meenan said on Tuesday, when the case was mentioned before him, he considered it is now moot (pointless) because the disputed restrictions have lapsed.
The judge asked to receive submissions from the sides concerning the action being moot or pointless and on costs issues and returned the matter to next month.
The fact the State previously agreed with Mr Ganley’s side not to raise the issue of mootness is not binding on the court, he said.
Earlier, Neil Steen SC, for Mr Ganley, had asked the judge to fix a hearing date and noted the State wanted a further three weeks to put in papers.
When the judge expressed the view the matter was moot, counsel said, when the case was initiated last November, the court directed Mr Ganley’s application for leave to bring it should be on notice to the State and put it back to December.
The temporary measures then in force had lapsed by then, but the State agreed in the interim it would not raise the issue of mootness and the case proceeded on that basis, Mr Steen said. His side would have taken a different approach had the State agreed not to raise a mootness issue, he said.
The State then took some four months to put in its evidence by which time the regulations which replaced the ones initially challenged have also lapsed, counsel said.
The case raises important issues concerning rights under the Constitution and European Conventon on Human Rights (ECHR) which deserve to be addressed, he urged.
There is no guarantee there will not be further lockdowns and Mr Ganley has been very prejudiced by how the State has gone about the litigation, he added.
Caren Geoghegan BL, for the State respondents, confirmed they previously agreed not to raise a mootness point and were not resiling from that.
The State has written to Mr Ganley’s side making points about the vaccine rollout and that there is now no restriction on religious worship, she added.
Mr Ganley’s case was brought against the Minister for Health, with Ireland and the Attorney General as notice parties.
A practising Roman Catholic, he claimed, as a result of the restrictions, he could not leave his home to attend Mass in breach of the State's guarantee of the free practice of religion in Article 44 of the Constitution.
He also alleged breach of Article 9 of the European Convention on Human Rights, which provides for the right to freedom of thought, conscience and religion.
Article 9 was relied upon in a recent case in Scotland by a group of 27 Church leaders which resulted in Covid regulations banning public worship being struck down two days before communal worship was due to resume under the next phase of lockdown easing there.