The danger in protecting one person’s rights is it can trample over another person’s, paid for by us

WE have been told that the ultimately unsuccessful Ashers litigation has cost in the region of £500,000. There have been calls for the head of Michael Wardlow, chief commissioner of the Equality Commission for Northern Ireland, over the waste of public money committed to this case.

These concerns are misconceived. Test case litigation is valuable even when it fails, in terms particularly of clarifying the law and highlighting the issue.

However, there are cost concerns in the Ashers case. Where any third party, be it commercial litigation funder, or public body, funds litigation to be brought by an individual who otherwise cannot afford it, this can result in financial hardship to the person sued. If they win the case, they may be unable to recover their costs against the party who sued them.

The principle is not altered by the presence of Ashers Bakery’s white knight, the Christian Institute, which raised funding for and undertook their defence.

If you can’t find a white knight and are being sued for something your insurance does not cover, you either have to finance your defence from your own resources, or fly the white flag.

Successful defendants have managed to recover their costs against third-party funders in some cases, but this has tended to be where the funder is taking a share of any damages recovered and not where the funder is driven by other concerns. Access to justice is a human right, to be sure, but for persons sued as well as for plaintiffs. The Equality Commission seems to have lost sight of something else in this case. This case was about a clash of rights.

Ashers Bakery had rights to freedom of religion and freedom of expression. To see this dispute so overwhelmingly as about Gareth Lee’s right not to be discriminated against is a poor advertisement for the equality and even-handedness to be expected of the Equality Commission.

This is the lesson it needs to learn.

DR DAVID CAPPER

School of Law, Queen’s University Belfast