Costs in Judicial Review: Relitigation and Post‑Judgment Developments Do Not Displace the “Costs Follow the Event” Presumption

1) Introduction

In Kearney v An Taoiseach and Ors (Approved) [2026] IEHC 245, the High Court (Mr Justice Cian Ferriter) delivered an ex tempore ruling on costs following the earlier substantive dismissal (in March 2024) of a judicial review challenging: (i) the termination of the applicant’s candidature for a senior security role within the Houses of the Oireachtas service, and (ii) An Garda Síochána’s position that it could not provide security clearance for him.

The applicant (an army officer at the time) had framed the judicial review around alleged breaches of fair procedures, alleged delay, and related complaints (including data protection and good name). Having lost on all grounds on the merits, he resisted the usual costs consequence by arguing (in substance) that the respondents’ lack of transparency and alleged withholding of information made the litigation necessary, and that the case raised issues of public importance.

The costs judgment is significant for its clear restatement of the statutory presumption that costs follow the event, and for its firm rejection of attempts to re‑run (or repackage) merits arguments at the costs stage, including by reliance on post‑judgment factual developments.

2) Summary of the Judgment

The Court awarded costs to the respondents (in two sets, reflecting separate representation for the Commission), including reserved/discovery costs, to be adjudicated in default of agreement.

Applying ss. 168–169 of the Legal Services Regulation Act 2015, the Court held that:

  • The respondents were “entirely successful”, so the presumption that costs follow the event applied.
  • The applicant did not identify “particular nature and circumstance” factors, or relevant “conduct of the proceedings” factors, sufficient to justify a departure from the default rule.
  • The applicant’s key costs arguments were, in reality, an inappropriate attempt to relitigate the substantive findings already made against him in March 2024.
  • Later developments said to “exonerate” the applicant in separate military justice processes were irrelevant to both (a) the lawfulness of the 2021 recruitment/security clearance decisions under review and (b) the respondents’ conduct in defending the judicial review.
  • The case did not involve issues of “special and general public importance” capable of displacing the normal costs rule.

3) Analysis

3.1 Precedents Cited

The costs determination was anchored in the statutory framework and reinforced by Court of Appeal authority:

  • Legal Services Regulation Act 2015
    • Section 168(1)(a): confirms the court’s power to order one party to pay another’s costs and preserves the general discretion on costs.
    • Section 169: establishes the general rule that an “entirely successful” party is entitled to costs unless the court orders otherwise, having regard to the “particular nature and circumstance” of the case and “the conduct of the proceedings”.
  • Chubb European Group v. Health Insurance Authority, [2020] IECA 183
    • The Court relied on Murray J’s summary that, under the 2015 Act, there is a presumption that the entirely successful party gets costs, and departure requires identification of particular justifying circumstances.
    • The judgment emphasises the two statutory lenses for potential departure: (a) the nature/circumstances of the case and (b) the parties’ conduct (including before and during proceedings, and whether it was reasonable to raise/pursue/contest issues).

Notably, this costs ruling did not turn on a long line of costs authorities; rather, its force lies in a close, disciplined application of the 2015 Act as interpreted in Chubb European Group v. Health Insurance Authority, [2020] IECA 183.

3.2 Legal Reasoning

A. The default position: “entirely successful” respondents presumptively recover costs

The Court treated the respondents’ success on all grounds as engaging s. 169 directly. Once “entire success” was established, the burden moved to the applicant to show why the Court should “order otherwise”.

B. Attempted “conduct” exception: alleged non-disclosure / lack of transparency

The applicant’s primary submission was that the security clearance process (and, implicitly, the litigation) was marked by the withholding of crucial information, such that timely disclosure—particularly around June 2021—would have avoided the need for judicial review. This was framed as “conduct” justifying a departure from the ordinary rule.

The Court rejected this as an improper attempt to re-run the merits. It did so by directly invoking specific findings from the March 2024 judgment that had already determined, against the applicant, that:

  • Security clearance was a foreseeable and sensible component of recruitment for a “manifestly security-sensitive” role, and was signposted in the candidate material.
  • The applicant was kept informed that clearance was awaited; the process did not step beyond reasonable or lawful bounds.
  • The applicant had no “rolling right” of engagement or representation-making during the currency of security clearance checks.
  • Characterisations of the process as “secret”, “Kafkaesque”, capricious, or unlawfully interfering were rejected on the evidence.
  • In particular, reliance on a contemporaneous note of a call between a Garda officer involved in clearance and the Commission’s security liaison (June 2021) did not establish unlawful interference; it was treated as, at most, a sensible view about a likely outcome while the underlying investigation remained unresolved.

The key move in the costs judgment is the Court’s insistence on finality and coherence: once the substantive judgment has rejected alleged unfairness/non-transparency, the costs jurisdiction cannot be used as a “back door” to re-litigate those same issues. The Court described the applicant’s approach as a “collateral attack” on binding findings.

C. Post-judgment “exoneration” as a costs factor

The applicant further argued that later developments (after the March 2024 judgment) showed the allegations underpinning the military investigation lacked substance, and that earlier transparency would have allowed him to rebut them sooner.

The Court rejected this as misconceived for two connected reasons:

  1. Temporal focus of legality in judicial review: the lawfulness of the 2021 decisions had to be assessed by reference to what was known, and reasonably done, during the relevant 2021 timeframe. The Commission’s concern was not a finding of guilt, but the existence and status of an ongoing investigation materially affecting whether security clearance could be provided.
  2. Irrelevance to “conduct of the proceedings”: post-judgment factual outcomes did not bear on whether the respondents’ defence of the judicial review was improper or unreasonable at the time it was conducted.

The Court thus treated the later “exoneration” narrative as incapable of displacing the costs presumption, because it did not speak to the operative administrative-law question: whether it was lawful and fair, in 2021, to be unable to grant clearance while awaiting the outcome of an ongoing investigation.

D. Public importance as a basis to depart from the normal rule

The applicant finally contended that the case raised issues of special and general public importance (public appointments, transparency, and who makes decisions), invoking the well-known line of costs jurisprudence under which courts sometimes decline to award costs against unsuccessful litigants who have raised issues of real public significance.

The Court held that this case did not qualify. It was:

  • brought at the applicant’s behest to vindicate personal interests in a specific recruitment outcome; and
  • resolved by applying established administrative-law principles to a fact-specific context, without any “novel or transcendent” point.

On that basis, public-importance considerations did not justify departing from s. 169’s default rule.

3.3 Impact

Although a costs ruling, [2026] IEHC 245 has practical importance in three recurring judicial review contexts:

  1. Costs-stage finality: it underscores that unsuccessful applicants cannot use costs submissions to re-argue factual disputes and fairness allegations already resolved on the merits. This promotes finality, reduces satellite disputes, and preserves the integrity of the substantive judgment.
  2. Subsequent events: the Court’s approach is a reminder that later developments—however compelling in narrative terms—are generally not a lever to undo costs consequences where legality turned on what was reasonably done on the information available at the relevant time.
  3. Public importance exception confined: the judgment reflects a cautious approach to characterising disputes about individual recruitment/security clearance outcomes as “public importance” litigation for costs purposes, particularly where no new principle is established and the case is fact-bound.

4) Complex Concepts Simplified

Judicial review
A procedure where the court reviews the lawfulness of a decision-making process by a public body (not whether the court agrees with the decision on its merits).
Certiorari
An order quashing a challenged decision because it was unlawful (for example, due to procedural unfairness, illegality, or irrationality).
Security clearance vs. Garda vetting
“Vetting” commonly refers to formal checks (often with structured outcomes and appeal routes). “Security clearance” may involve broader security-sensitive assessment. In this litigation (as found on the merits), the clearance checks were treated as part of an overall recruitment fact-checking process for a highly security-sensitive role.
“Costs follow the event”
The general rule that the winning party recovers its legal costs from the losing party, subject to a court’s discretion to depart from that rule in defined circumstances (now codified in s. 169 of the 2015 Act).
“Entirely successful” (s. 169)
A party who wins the proceedings overall. If so, they are presumptively entitled to costs unless the court identifies a reason to order otherwise.
Collateral attack / relitigation
An attempt to undermine or re-open findings from a final judgment in a later procedural step (here, at the costs stage) instead of by appeal.
Adjudication of costs
If the parties cannot agree the amount of costs, a formal process determines the recoverable sum.
Ex tempore judgment
A decision delivered orally (often with later approval/transcription), typically used for issues the court considers capable of being decided without a reserved written judgment.

5) Conclusion

Kearney v An Taoiseach and Ors (Approved) [2026] IEHC 245 reinforces the statutory architecture of costs under the Legal Services Regulation Act 2015: where respondents are entirely successful, they are ordinarily entitled to their costs, and the onus lies on the unsuccessful party to demonstrate concrete reasons to depart from that rule.

The judgment’s central contribution is methodological: it draws a firm line between (a) legitimate costs discretion factors and (b) impermissible attempts to revisit merits findings or to rely on post-judgment developments to avoid the normal costs consequence. It also reflects a restrained view of when fact-specific recruitment/security clearance disputes can properly be reclassified as public-importance litigation for costs purposes.