BUPA not acting in public interest, says judge

BUPA must pay all of the legal costs, estimated at more than €5 million, arising from its unsuccessful court challenge to the introduction of the Risk Equalisation Scheme (RES) in the health insurance market, the High Court has ruled.

Mr Justice Liam McKechnie said yesterday that BUPA’s challenge was essentially brought to preserve its commercial position and there were no special factors which would justify the court departing from the normal practice that costs be paid by the losing party.

While he had no doubt the issues raised in the case were of public importance and in the public interest, there was no doubt that, in this case, the indisputable key factor and driving interest of BUPA was to preserve its position in the health insurance market and to protect its commercial position, its profits and reserves, he said.

BUPA was perfectly entitled to pursue that action but it was “simply not so,” as was suggested by the company, that BUPA’s motivation was equally prompted by public interest concerns.

It was clear “beyond doubt” that BUPA’s focus remained on preserving its commercial position, especially given its decision to embark on an orderly withdrawal from the health insurance market without waiting for the outcome of its Supreme Court appeal against his decision.

Given the resources of BUPA and its parent company’s worldwide interests, he could not find the overall justice of the situation would be met by acceding to the application by Mr Paul Sreenan SC, for BUPA, for costs or a percentage of those costs, the judge said.

The challenge by BUPA was heard over 35 days, with judgment delivered last November. The judge deci-ded yesterday that BUPA must pay the costs of the State, the VHI and the Health Insurance Agency.

A stay has been imposed on the costs ruling pending the outcome of BUPA’s appeal to the Supreme Court.

BUPA is expected to apply to the Supreme Court soon to further extend the stay until that court hears and determines its appeal.