A bid by the Restaurants Association of Ireland and three restaurants, including Boxty House in Dublin’s Temple Bar, to challenge “irrational” regulations permitting indoor dining within hotels while preventing indoor dining in non-hotel commercial restaurants has been adjourned at the High Court to later this month.
The adjournment to July 22nd, granted on consent of the sides when the matter was briefly mentioned in court today, is to allow the Minister for Health’s side more time to file affidavits.
When the application for leave to bring the judicial review proceedings first came before the court on June 21st, Mr Justice Charles Meenan noted the Government’s intention (at that point) was to lift the regulations on July 5th if the Covid-19 situation permitted.
He directed the leave application should be made on notice to the Minster and returned the matter to July 8th when he said all would be aware of developments on July 5th which would dictate how the judicial review matter would proceed.
Since then, no firm date has been set for reopening of indoor dining in non-hotel commercial restaurants, but discussions between the affected parties are continuing.
The RAI, a representative body for the restaurants of Ireland; Boxty House Ltd, a restaurant operator of Temple Bar, Dublin 2; Esquires Coffee Houses Ltd, which operates cafes and has registered offices at Ballybrit, Galway; and Sarsfield Taverns Ltd, which operates a pub/restaurant and has registered offices at Mallow Street, Limerick are involved in the challenge.
The challenge arises from certain regulations made via Statutory Instruments under the Health Act, as amended, which the Government intends, under its plan for opening up the country as the Covid-19 situation permits, to lift on July 5th.
In an affidavit, RAI chief executive Adrian Cummins said its members have been “greatly disadvantaged and are incurring major economic loss by reason of the irrational regulations”.
He believed, and was advised, the Minister had acted outside his powers in making regulations which, as they apply to restaurant and dining services since June 2nd, are “irrational, discriminatory, disproportionate, impossible to implement, lacking in certainty and lacking in substantive fairness”.
Michael McDowell SC, instructed by solicitor Georgina Robinson, for the applicants, said his side maintains, whether the regulations are lifted or not, there is no legal basis for them.
Counsel said there are issues about the legality of what is going on now and what is to happen if the situation worsens in the future and such discriminatory regulations are reintroduced.
The applicants wanted an opportunity to make their case the regulations “are unlawful and should not be repeated”.
The applicants, he stressed, fully accept the need for restrictions to stop the spread of Covid-19 but argue the restrictions on them, compared with those on hotels and B&Bs, are irrational and disproportionate, amount to unjustified interference with their economic interests and in excess of the Minister’s powers.
Other concerns include the regulations fail to have any regard to the nature, size or ventilation of indoor restaurant facilities, whether in hotels or elsewhere, he outlined.
It is irrational that smaller and less ventilated hotel dining rooms can operate while more spacious and better ventilated restaurants cannot, it is claimed. Another complaint is the regulations permit hotel guests to freely mingle among themselves while using indoor restaurant facilities when families and households cannot dine together in non-hotel restaurants.