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2025 IEHC 770

THE HIGH COURT [2025] IEHC 770 [Record No. 2025/1PEP] BETWEEN ANGELA FEENEY PETITIONER AND MARTIN GROVES, NIALL BLANEY, VICTOR BOYHAN, PARAIC BRADY, MARIA BYRNE, JOANNE COLLINS, TERESA COSTELLO, PAUL DALY, EILEEN LYNCH, P.J. MURPHY, MALCOLM NOONAN AND SARAH O’REILLY RESPONDENTS AND THE DIRECTOR OF PUBLIC PROSECUTIONS, THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE, AND THE ATTORNEY GENERAL NOTICE PARTIES EX TEMPORE JUDGMENT delivered by Mr. Justice Micheál O’Higgins on 19th December 2025 Introduction

  1. This is my ex tempore judgment on costs in these election petition proceedings. I delivered my principal judgment on the 22nd October 2025, Feeney v. Groves & Others [2025] 1 IEHC 633, and the petitioner was unsuccessful on all grounds. The hearing on costs took place yesterday, and the following is a summary of the position adopted by the parties.
  2. The first respondent, the returning officer, is formally seeking his costs, but made no submission to the court to that effect, either written or oral. In a letter replying to correspondence from the petitioner’s solicitors, Mr. Donnelly of the Office of Parliamentary Legal Advisers explained that, given the responsibility on the Houses of the Oireachtas Commission to safeguard public funds, and in light of the outcome of the case, the returning officer could not consent to bearing his own costs. However, the letter went on to acknowledge that there were unusual features of the case, which was the first of its kind, and has clarified the correctness of the returning officer’s interpretation of the rules relating to recounts. The letter indicated that the returning officer was content to leave the question of costs in the hands of the court, and that this would carry the advantage of avoiding the additional costs associated with a costs hearing. On that basis, the returning officer was not delivering written submissions or making oral submissions.
  3. Moving then to the position of the State notice parties, that is the Minister for Housing, Local Government and Heritage and the Attorney General, those parties participated in the hearing of the petition and instructed a full legal team. Notwithstanding their full participation in the hearing, and their success in the petition, the State notice parties have not sought their costs on the understanding that no application for costs would be made against them, which has transpired to be the case.
  4. Thirdly, in correspondence exchanged between the parties, the sixth named respondent, that is Senator Joanne Collins, who the court understands had instructed a lawyer to maintain a watching brief, has also not sought her costs.
  5. Fourthly, the Director of Public Prosecutions, who was named as a notice party, and who did not in any active sense participate in the proceedings, also is not seeking her costs. 2
  6. Fifthly, the fourth, fifth, ninth, and tenth named respondents, whom we might refer to, purely for shorthand purposes, as the Fine Gael respondents, did participate in the hearing of the petition, instructed a full legal team, called evidence and cross-examined witnesses. Of these, the only application for costs is the application being made on behalf of the fifth named respondent, Senator Maria Byrne. As noted by her counsel, Senator Byrne’s position was different to others because she had, as it was put, “the most to lose”. The fifth named respondent was marginally ahead of the petitioner when the petitioner was eliminated after the 23rd count and thus was the Senator of those elected to the Agricultural Panel with the greatest legal interest in the proceedings.
  7. In summary therefore, it can be said that there are two separate applications for the court to consider in this ruling. Firstly, the formal application for costs made on behalf of the returning officer, unsupported by written or oral submissions. And secondly, the application for costs of Senator Byrne, supported by written submissions and oral submissions made to the court yesterday.
  8. Turning then to the law on costs, the parties are agreed that the position is governed by s. 169 of the Legal Services Regulation Act 2015, which provides, in material part, that a party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings unless the court orders otherwise, having regard to the particular nature and circumstances of the case and the conduct of the proceedings by the parties.
  9. No submission was made to the court that these election petition proceedings do not constitute civil proceedings within the meaning of the section. In these circumstances, therefore, it is not necessary for the court to address that issue further. The definition of “civil proceedings” was considered in a recent judgment of the court in Singh v. McCauley [2025] IEHC 754, but as I say it is not necessary to address that discrete issue beyond that. 3
  10. The parties are agreed that the starting point for the court’s analysis on costs is that the returning officer and Senator Byrne have been “entirely successful” in the proceedings within the meaning of that expression in s. 169 of the 2015 Act. Therefore, the strong default rule is that they are entitled to their costs unless the court orders otherwise having regard to the nature and the circumstances of the case and the conduct of the proceedings by the parties. It is appropriate that I should consider each of those grounds separately. I will start with the nature of the proceedings.
  11. As fairly acknowledged by the returning officer in correspondence, being an election petition, the case had unusual features. In addition, as acknowledged, it was essentially the first of its kind to deal with recounts and transparency issues in Seanad elections. And again, as acknowledged, has clarified the rules in relation to recounts in that context. Undoubtedly, therefore, the court’s judgment is of some benefit to the State, the returning officer and election officials generally.
  12. Secondly, the nature of the case, it is fair to say, concerned a legal challenge to the validity of an election in which the petitioner, and indeed Senator Byrne, participated. The election was, of course, to Seanad Éireann, one of the Houses of the Oireachtas responsible, with the Dáil, for enacting the laws of the country. Moreover, the petition concerned important legal principles which are fundamental to the democratic character of the State, including the rules governing the counting of votes, the granting of recounts, the transparency of the counting process and relevant legal tests in election petitions. Undoubtedly, the proceedings had an importance which went beyond the private interests of the two candidates concerned. These are, in my view, important features that pertain to the ground identified by the Oireachtas relating to the nature of the proceedings under discussion.
  13. It is proper that I also take into account the other factor identified by the Oireachtas in s. 169, namely the conduct of the proceedings by the parties, and, as noted in the court’s 4 substantive judgment at para. 52, the petitioner herself gave evidence and “came across as a balanced witness who gave her evidence in a straightforward and reasonable fashion. She articulated her concerns [about the election] with clarity and outlined why she felt it was important to bring the petition”. The challenge was brought in an appropriate fashion and all requisite steps for bringing an election petition were complied with, including the step of satisfying the High Court at ex parte stage that leave to issue the petition should be granted.
  14. The petitioner was careful to moderate her criticism of the returning officer’s conduct of the election by acknowledging, appropriately, the careful and meticulous work carried out by the returning officer and his staff. In no sense could it be said that the proceedings involved a reckless or a gratuitous attack on the election officials concerned, whom the petitioner went out of her way to compliment. No element of the challenge was personalised, and I got no sense of any desire on the petitioner’s part to impugn the reputation of any of her fellow candidates, importantly, or of any member of the returning officer’s staff.
  15. It is also clear that the petition was brought in good faith, based on the petitioner’s sincere belief that there were transparency deficits in how the votes were counted, and also with how her request for a recount was dealt with.
  16. Having carefully considered the points argued, I find that I must reject the argument that any criticism should arise from the fact that the petitioner advanced what might be termed a “novel argument” as to the correct interpretation of rule 14

(2)of the Second Schedule to the Seanad Electoral (Panel Members) Act
  2. In my view, the wording of the provision in question was not without uncertainty and undoubtedly called for interpretation. It is the case that the petitioner was ultimately unsuccessful in persuading the court that her interpretation should be preferred. However, that conclusion was only reached after the court had engaged in a full ‘Heather Hill-type’ analysis of the wording of the rule (see Heather Hill v. An Bord Pleanála [2024] 2 I.R. 222). 5
  3. On no account could it be said that the petitioner’s argument was fanciful or unstateable. Indeed, the petitioner was able to argue with some force that, if the respondent’s interpretation of the provision were correct, there was a surprising gulf between the rules for recounts in Dáil elections and the rules for recounts in Seanad elections. Indeed, the court’s judgment could be said to lend support to the idea that there is such a gulf, but on no characterisation of the issue could it be said that the argument was specious.
  4. While I take Senator Byrne’s point that the legal argument was only developed on day three of the hearing, counsel for the petitioner was careful to reserve his position on the point when the court asked a question from the bench during the course of counsel’s opening of the case.
  5. There are other aspects of the petitioner’s argument on costs that I find less compelling. For instance, the suggestion that Senator Byrne should somehow have not involved herself in the proceedings, and ought to have left it to the returning officer to defend her interests, in my view, understates and fails to appreciate the importance of what was at stake for the fifth respondent. As the individual whose professional interests were most directly impacted by the legal challenge, Senator Byrne was undoubtedly within her rights to choose to participate fully in the proceedings. And, in fairness to the argument made by counsel for the petitioner, it was more subtly put than insisting it was unreasonable for the fifth respondent to participate in the manner she did.
  6. In my view, and in matching Councillor Feeney’s commitment to the democratic process, Senator Byrne participated in the proceedings by providing relevant evidence and instructing a legal team to protect her individual interests in holding her seat in Seanad Éireann - her right to hold elected office - and maintaining her professional livelihood as a member of the legislature. She was also, it should be said, a named respondent nominated by the petitioner in accordance with Order 97, rule 7 of the Rules of the Superior Courts and did not on her own 6 initiative or motion apply to be joined to the proceedings. This fact, in one respect, differs from the situation in Sere Holding v. HSE [2023] IEHC 133, the decision of Mr. Justice Twomey to which I will return presently.
  7. In my view, a significant factor that does have a bearing on the petitioner’s invitation to the court to depart from the normal default rule of granting costs to the successful party is the fact that, but for the petitioner’s commitment to the democratic process and willingness to allow her name to go forward as a candidate for Seanad Éireann, and but for the fact that she amassed an impressive number of votes that placed her tantalisingly close to securing a seat in Seanad Éireann, the petitioner would not, in all likelihood, have brought this election petition. This point underscores the sui generis nature of the election petition proceedings which are bound up with the democratic character of the State.
  8. It is clear that both the petitioner and Senator Byrne are committed public representatives who value highly the principles of parliamentary democracy and the transparency of elections. At the end of the day, the petitioner put forward, in a legitimate and bona fide fashion, genuine concerns which she had about the decision to refuse her a full recount of votes and the manner in which the counting of votes had taken place. In addition to her own evidence, and that of Labour party colleagues, she called cogent and relevant evidence from an acknowledged political scientist, whose evidence the court found to be of assistance.
  9. On the question as to the reasonableness of bringing the petition, the court, in the course of its judgment, observed that it was initially somewhat surprised that the recount had not been granted. All of these points underscore the point that these were substantial proceedings which, as well as advancing the petitioner’s private interests in seeking a recount of votes with the possibility of reversing her elimination, carried a significant public interest dimension, which in my view, distinguishes this type of action from purely private law proceedings. 7
  10. I also take into account that, while it was perfectly reasonable for Senator Byrne to instruct a legal team to fully participate in the proceedings, she was under no obligation to do so, and could have adopted the view that her interests would be fully protected by the returning officer’s evident intention to defend the proceedings and appoint a full legal team to do so, and also by the State notice parties who participated in the legal issues that arose in the case.
  11. Turning then to the authorities cited by the parties, the petitioner in particular relied upon two authorities: the decision of Mr. Justice Twomey that I have already referenced in Sere Holding, and the decision of the Supreme Court in Little v. Chief Appeals Officer & Others [2024] IESC
  12. The petitioner submits that the fifth named respondent, Senator Byrne, was, by operation of Order 97, rule 7 RSC, described as a respondent to the petition, but that her position in truth was far closer to that of a notice party to the litigation. The petitioner submits that no act or omission of hers was impugned in the proceedings, that her participation was entirely optional, and that the principal purpose for her automatic joinder as a respondent was presumably because the outcome of the petition could have had a material impact upon her.
  13. The petitioner seeks to draw a clear analogy between her position and the position of the notice party in the decision of Mr. Justice Twomey in Sere Holding. That case involved a challenge to a public procurement process brought by the unsuccessful bidder (Sere) against the Health Service Executive (HSE). The successful bidder, IAS Medical, was named as a notice party and participated in the hearing in which the HSE, as respondent, succeeded. IAS Medical sought its costs against Sere. As with the fifth respondent herein, IAS Medical was not required to participate, but chose to do so in circumstances where the outcome of the proceedings could have impacted its interests.
  14. Having reviewed the relevant authorities, Mr. Justice Twomey summarised the principles applicable to the costs of the notice parties as follows at para. 64 of that judgment: 8 “• a notice party is prima facie not entitled to costs, even if it is successful in helping the respondent defeat the challenge; • to the extent that for commercial reasons, a notice party decides to be joined to the proceedings, it will not be paid its legal costs for protecting its commercial interests by the applicant; • in the absence of compelling reasons, a respondent is well able to protect its own legal interests and a notice party does not need to replicate its defence, be represented at the hearing or fully participate in the proceedings; • a notice party is obliged to keep its input (and so its legal costs) to a minimum by considering why any factual matters, within its knowledge, which are in dispute, could not be adequately dealt with on affidavit, without incurring the full costs of the litigation; • in exceptional circumstances, such as relating to matters within the particular knowledge of the notice party (and not available to the respondent), a notice party may be entitled to such costs as are reasonable to deal with that issue.”
  15. The petitioner submits that, applying those principles to this petition, and on the basis that the true position of the fifth respondent is akin to that of a notice party, the starting position should be that Senator Byrne has no prima facie entitlement to costs as against the petitioner, and in particular, the fact that she chose to participate in the proceedings to protect her political interests does not mean, says the petitioner, that she should be indemnified for that exercise by the petitioner. It is urged that the returning officer was more than capable of defending the petition without reliance on the submissions or evidence proffered by the Fine Gael respondents. The submissions made on behalf of those senators did not materially advance the case made in opposition to the petition. Taking the court’s judgment as a whole, the petitioner urges that there are only a handful of references to the evidence given on behalf of those 9 senators, the fifth respondent and Mr. Terry Murphy, and it is difficult to see how their evidence could be said to have had any meaningful impact on the outcome.
  16. Accordingly, the fourth, fifth, ninth, and tenth respondents did not attempt to minimise their participation at the hearing of the matter, and that, says the petitioner, is a highly relevant matter.
  17. As against all of that, senior counsel for the fifth respondent submits that it is “wholly unrealistic” and stretching Twomey J.’s decision too far, particularly from the moorings of the Sanofi case (Sanofi Aventis Ireland Ltd t/a Sanofi Pasteur v. Health Service Executive & Anor [2018] IEHC 719), to conclude that the Sere Holding principles should cover the situation here. Counsel urges that there is a strong distinguishing feature between Sere Holding and the present situation, because the fifth respondent was a named respondent here, in accordance with the Rules of Court, and was named by the petitioner. Counsel also urges that the petitioner’s submissions fail to build in or sufficiently appreciate that Senator Byrne’s seat was actually at stake, and in that sense, she could properly be said to have had “skin in the game”.
  18. Mr. Clarke SC also submits that to not award the fifth respondent her costs could, and in this case would, operate as a deterrent to other candidates from defending an election petition in the future. He also asked the rhetorical question of why the onus should be placed on the fifth respondent to correspond with the petitioner on the costs issue and on the representational question in circumstances where the petitioner is the moving party and, therefore, should have the primary onus to anticipate any costs issues that are likely to arise.
  19. The fifth respondent submits that the general rule that an entirely successful party is entitled to their costs ought to be followed here, and that insufficient reasons have been advanced to warrant a departure. The petitioner has lost the case on all grounds. Of those factors that might cause a court to decide otherwise, none lean towards precluding a successful respondent, who meaningfully participated in proceedings, from recovering costs. The 10 particular nature and circumstances of the case called for the participation of the senator with most at stake, if the court did not uphold the election result. The conduct of the proceedings by the petitioner, in presenting a changed position on the statutory interpretation issue, called for additional written submissions and it is urged it was not reasonable for the petitioner to raise this in the circumstances.
  20. Moreover, the transparency issues as raised by the petitioner, it is submitted, were unreasonably raised, and indeed some of them did not feature in matters discussed with the returning officer at the scene and did not feature in the petition itself. As a person present at the election count, along with her election agent, Senator Byrne had evidence to offer and to call on the issues of transparency raised, which was contrary to the evidence called by the petitioner. The fifth named respondent conducted her case appropriately, participated in the cross-examination of the petitioner’s witnesses and called her own evidence. She could not rely on others to do so, particularly when she had a legal interest at stake in the matter.
  21. For all these reasons, it is urged that the fifth named respondent would suffer an injustice were the court not to make an order of costs in her favour. Analysis of the court
  22. In my view, the petitioner’s submission is correct insofar as she submits that, in the main, the submissions made on behalf of the Fine Gael respondents mirrored those made on behalf of the returning officer and the State notice parties. In saying that, however, I wish to emphasise that that is not, in any sense, to understate or besmirch the important contribution made by the fifth respondent to the proceedings, and indeed the contribution which the fifth named respondent herself made in giving evidence in the case on the transparency issues that were advanced. 11
  23. The court also takes into account that the Sere Holding case emphasises the importance of two principles: Firstly, the distinction to be drawn between the reasonableness of a decision to participate in proceedings versus the reasonableness of an expectation that it should always follow that, if successful, the parties should recover costs where the parties’ interests were adequately covered by a primary defendant. Secondly, the principle that distinguishes between legal interests and, in that case, commercial interests.
  24. In the view of the court, weighing up all these different factors and having regard to the helpful submissions made by counsel, including the point that the Fine Gael respondents were all represented by the same legal team, and the deeply held concern articulated by the Supreme Court in Little that, were full costs to be awarded against a petitioner, it would likely have a significant and unwanted deterrent effect on parties who might, in the future, give consideration to challenging election outcomes by way of petition, there is merit in Mr. McDowell’s argument that, by reference to the Supreme Court’s decision in Little v. Chief Appeals Officer, a number of the public interest ‘boxes’ were ticked by these proceedings.
  25. I have come to the view that the court should make a significant departure from the normal default position of awarding the successful party her costs. In my view, viewing matters in the round, justice requires the following orders.
  26. Firstly, with respect to the application of the returning officer for his costs, and noting the important point that the application for costs was not pressed with the utmost of vigour and was not accompanied by a written submission or reinforced in oral submissions before the court, and, if you like, reflecting the mood music of the meeting on that ground, I will make no order as to costs with respect to the returning officer. The returning officer and indeed the State parties undoubtedly derived a degree of benefit from having the issues clarified and the statutory interpretation question resolved. 12
  27. Secondly, with respect to the application for costs made on behalf of Senator Byrne, I will award her the following costs only: Firstly, the reasonable costs of her solicitor and counsel in preparing both sets of written submissions. Secondly, the reasonable costs of preparing Senator Byrne’s affidavit. Thirdly, the reasonable costs of preparing the affidavit of Mr. Terry Murphy. Fourthly, the reasonable costs associated with filing the Notice of Intention to Appear on behalf of the fourth, fifth, ninth, and tenth named respondents. Fifthly, and here I am borrowing from the example of Mr. Justice McDonald in the Sanofi case which featured in the judgment of Mr. Justice Twomey, the reasonable costs of the review of the transcripts by solicitor and counsel for two days of the hearing to reflect the pivoting, or to borrow the language of Mr. Clarke SC, the morphing of the proceedings relating to the additional transparency issues raised by the petitioner that did not feature in the original petition. And those five items are the extent of the costs I will award as against the petitioner.
  28. I am taking into account as well one other important matter which I ought to have referenced earlier, and that is the decisiveness of the petitioner’s decision to abandon any prospect of recovering costs from the returning officer or the State notice parties. In light of the unusual features of the case and their public interest dimension, I am of the view that the petitioner is entitled to some credit for couching her submissions in terms that effectively extinguished the possibility of a positive costs order being made in her favour, and I have taken that into account in arriving at the decision that I have reached. It also illustrates the important principle that, above all else, it is the role of solicitor and counsel to put the interests of their client first, and that expected “given” was admirably complied with here.
  29. For all of these reasons, those are my conclusions on costs. Signed: Micheál O’Higgins 13 Appearances: For the petitioner: Conor Power SC and Hugh McDowell BL instructed by O’Mara Geraghty McCourt Solicitors. For the first respondent: Catherine Donnelly SC and David Leonard BL instructed by the Office of Parliamentary Legal Advisers. For the fourth, fifth, ninth and tenth respondents: Séamus Clarke SC and Cian Kelly BL instructed by Kevin O’Higgins Solicitors. For the sixth respondent: Síne Finn BL instructed by Daniel Kreith Solicitors. For the first notice party: Lily Buckley BL instructed by the Chief Prosecution Solicitors Office. For the second and third notice parties: Bairbre O’Neill SC and Aoife McMahon BL instructed by the Chief State Solicitor’s Office. 14

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