Bupa is to continue its High Court constitutional challenge to the legislation which allowed the Health Insurance Agency (HIA) to recommend that Bupa make risk-equalisation payments to its rival health insurance company, the VHI.
Last week, the Minister for Health decided not to pursue the risk-equalisation measure recommended by the HIA which, had it gone through, could have meant Bupa paying the VHI about €35 million a year.
Yesterday, Mr Justice John Quirke was told that, in light of the Minister's decision, Bupa was no longer pursuing legal action against the HIA. However, Bupa was continuing its challenge to Section 12 of the Health Insurance Act 1994 and intended to advance its claim that the legislation breached an EU directive.
The judge said he hoped to have the constitutional challenge heard next term.
Bupa plans to call evidence in relation to risk-equalisation schemes and will oppose the VHI being represented at the hearing which could last two weeks.
Mr Michael Collins SC, for Bupa, said the Minister's decision meant that his client was not under an immediate risk of having to pay the VHI.
However, the matter of hearing his client's constitutional challenge was urgent because, in six months' time, the Minister had to review the matter again. The HIA would come back into the picture because there was a statutory obligation to carry out a review every six months. Bupa hoped to call oral evidence in relation to risk-equalisation schemes.
Mr Gerard Hogan SC, for the State, said the matter was overwhelmingly urgent. The issue (of payment) was definitely under review and, given the major constitutional challenge Bupa had commenced, it was imperative the matter be heard very quickly.
Mr Paul Gallagher SC, for VHI, said it was entitled to be represented at the hearing. It was not just the payment which was crucial. If the risk-equalisation scheme was declared invalid, it would have serious consequences for the VHI and its reserves - it could no longer look to the scheme to supplement the deficiencies that it would suffer through the absence of a risk-equalisation scheme.
Mr Collins said his client would oppose the VHI's legal standing to be represented at the Bupa hearing. The only parties entitled to be represented were his clients and the State.
The judge agreed to a two-week adjournment when the progress of the action will be reviewed.