1. Introduction
This judgment determines who should bear the costs of a successful judicial review of a District Court child-access order. Its central holding is that a parent joined as the opposing party because the District Court judge cannot ordinarily be sued enjoys no special protection from costs if that parent chooses to defend the challenged order.
The applicant mother had successfully challenged an order made in proceedings under the Guardianship of Infants Act 1964. The respondent father opposed the judicial review throughout, seeking to preserve the access arrangements. After the mother succeeded, he argued that the sensitive personal rights involved justified making no order as to costs.
Simons J. rejected that argument. The importance of maintaining contact with a child did not, by itself, displace the ordinary statutory rule favouring the successful party. Particularly significant was the father’s continued defence of the District Court proceedings after receiving a transcript revealing fundamental procedural defects.
The decision applies established costs principles to an important procedural setting: judicial review of a lower-court decision where the other litigant, rather than the judge, is the respondent.
2. Background and Procedural History
The challenged District Court order was made on 10 October 2025. The judicial review proceedings initially named the District Court judge as a respondent. That was contrary to Order 84, rule 22(2A) of the Rules of the Superior Courts, which ordinarily excludes judges from being joined unless qualifying allegations of personal misconduct are made.
An amended statement of grounds removed the judge. Although the amended document was not formally filed until later, Bradley J. granted leave by reference to it on 23 March 2026. The proceedings thereafter continued against the father alone.
A stay of the District Court order was granted and subsequently extended. Given the involvement of a vulnerable child, Simons J. expedited the substantive hearing rather than conduct a separate contested hearing about extending the stay. He also directed that a transcript of the District Court hearing be prepared and supplied to both parties. They received it on 9 July 2026.
At the substantive hearing on 28 July 2026, the father advanced several grounds of opposition:
- The judicial review was premature because the District Court order was said to be interim and capable of revision.
- An appeal to the Circuit Court provided an adequate alternative remedy.
- The child’s views had been sufficiently presented through an expert report.
- The District Court judge had not improperly delegated the adjudicative function to the expert.
- The judge’s interventions did not establish prejudgment or objective bias.
- The mother had not been denied an opportunity to cross-examine the expert.
The court subsequently considered an audio recording of a further District Court hearing on 26 November 2025. Both parties were given an opportunity to address that recording at a resumed hearing on 31 July 2026.
In the principal judgment delivered on 7 August 2026, the High Court found the District Court hearing fundamentally flawed in four respects. The costs judgment identifies, among those defects, failure to apply the legislation implementing the constitutional requirement to ascertain and give appropriate weight to the child’s views, a fundamental defect in the decision-making process, and a denial of justice to the child and mother.
3. Summary of the Costs Decision
The High Court awarded the mother her costs, subject to specific exclusions. The decisive conclusions were:
- The mother was entirely successful for the relevant statutory purpose. She obtained the substantive relief which the father had opposed.
- The father’s procedural status conferred no costs immunity. Being joined as legitimus contradictor did not oblige him to defend the District Court order or protect him from the consequences of choosing to do so.
- The personal importance of child access was insufficient to displace the ordinary rule. The mother had an equally significant interest in setting aside an order resulting from a fundamentally flawed hearing.
- Continued opposition lacked an adequate objective basis. The transcript should have made the exceptional defects, and the absence of a real prospect of successfully resisting the challenge, apparent.
- Civil legal aid did not change liability for costs. The relevant legislation required the ordinary costs assessment to be undertaken.
The court nevertheless excluded costs attributable to the applicant’s own procedural error and to an irrelevant affidavit.
4. Statutory and Procedural Framework
4.1 The successful party’s presumptive entitlement
Section 169 of the Legal Services Regulation Act 2015 establishes the starting point: a party who is “entirely successful” in civil proceedings is entitled to costs against the unsuccessful party unless the court orders otherwise. Any departure requires reasons.
Entire success is assessed practically, by examining the substantive outcome rather than counting every argument won or lost. Once a party establishes that status, the unsuccessful party must demonstrate why the court should depart from the statutory presumption.
4.2 Distributing costs between parts of proceedings
Sections 168 and 169 permit a court to allocate costs separately for distinct stages or issues. However, the judgment cautions against excessive fragmentation. Relevant considerations include whether an issue:
- was specifically pleaded;
- required evidence that would otherwise have been unnecessary;
- occupied an identifiable part of the hearing; and
- materially affected the overall costs.
Even a separable issue does not necessarily justify an adjustment. The court must also consider whether pursuing or contesting it was reasonable. Adjustments may be inappropriate where the costs were negligible or their identification would require disproportionate examination of the litigation.
4.3 The proper respondent to review of a judicial decision
Order 84, rule 22(2A), introduced through the Rules of the Superior Courts (Judicial Review) 2015, generally prevents a lower-court judge from being named as respondent or notice party. The exception concerns allegations of bad faith or other personal misconduct sufficient to remove judicial immunity.
Ordinarily, the other parties to the lower-court proceedings are joined instead. This ensures that someone directly interested in preserving the order can oppose the challenge. It does not require that person to do so.
5. Precedents Cited and Their Influence
M. (Child Access Arrangements) v. F. [2026] IEHC 537
The principal judgment supplied the foundation for the costs determination: the mother’s successful challenge and the findings of fundamental procedural unfairness. The costs judgment did not reopen those merits. Instead, it considered how the father’s litigation choices should be evaluated against the defects already established.
The relationship between the two judgments matters. The costs award was not a determination of the parents’ underlying factual allegations or their competing claims about appropriate access. It followed the successful challenge to the lawfulness of the process.
Little v. Chief Appeals Officer [2024] IESC 53
This Supreme Court authority explains the function of “entirely successful” in the statutory scheme. The classification principally determines which party enjoys the presumption in its favour and where the burden of justifying a different order falls.
Its practical significance here was that the mother did not lose her presumptive entitlement merely because broader reliefs had been refused. She had obtained the substantive result against which the father directed his opposition.
McIlwraith v. Judge Fawsitt [1990] 1 I.R. 343
This authority explains the historical basis for joining the other contesting party as legitimus contradictor. In the circumstances described in that decision, a lower-court judge who had not acted improperly or in bad faith, and had not defended the apparently invalid order, should not bear the successful applicant’s costs.
The practical response was to join the other party to the original proceedings so that the judicial review had a proper opposing party if required. Simons J. explained that this practice is now reflected in Order 84, rule 22(2A).
The important distinction is between protecting the judge in the ordinary case and immunising another litigant who elects to defend the order. The former does not entail the latter.
Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4
This authority establishes that an unopposed judicial review does not automatically succeed. The High Court must still satisfy itself that granting relief would be a lawful exercise of its supervisory jurisdiction.
It therefore answered a central practical concern: the father could have declined to oppose without automatically conceding every allegation or ensuring that the mother obtained relief. The court would still have examined whether the District Court order should be set aside.
Kilty v. Judge Dunne [2020] IESC 65, [2024] 3 I.R. 702
Simons J. cited this decision for the proposition that even a lower-court judge who seeks to participate in order to defend a challenged decision does not thereby enjoy immunity from costs.
The comparison reinforces the judgment’s central reasoning: a litigant who chooses to oppose judicial review cannot derive special costs protection merely from the procedural circumstances that brought that litigant before the court.
In the matter of M.V. Lady Magda [2021] IECA 51
This Court of Appeal decision informed the meaning of “reasonable” litigation conduct. Good faith and a genuine belief in eventual success do not, without more, establish objective reasonableness.
Equally, reasonableness cannot simply mean being legally correct. Otherwise, it would add nothing to the separate criterion of success. The question is whether the circumstances provided an objectively defensible basis for raising, pursuing or contesting the issue.
6. Analysis of the Court’s Reasoning
6.1 Participation is optional, but opposition carries risk
The court distinguished compulsory joinder from compulsory opposition. The father became the respondent through the procedural rules, not because he had made the challenged judicial decision. Nevertheless, he remained free not to file a statement of opposition.
Once he chose to defend the order comprehensively, ordinary costs principles applied. This does not establish automatic liability for everyone joined as a respondent. It establishes that procedural status alone supplies no exemption from the usual assessment.
6.2 Reasonableness requires an objective foundation
The father’s desire to maintain access to his child was understandable. But that explained his motivation, not necessarily the reasonableness of defending every aspect of the District Court process.
The court identified possible objective reasons for pursuing an unsuccessful argument, including uncertainty in legislation or authority, the issue’s significance to the outcome, and the opponent’s conduct. Assessment must reflect the circumstances at the time, rather than treating eventual defeat as proof that the argument was always unreasonable.
Here, however, the transcript supplied an objective basis for recognising that the proceedings were fundamentally defective. Continued opposition after its receipt was central to the costs ruling. The later recording further supported the complaint that the judge’s adverse assessment of the mother had crystallised and continued to influence the approach taken.
6.3 Sensitive rights operate on both sides
The judgment rejects a one-sided use of the personal importance of access. The father’s interest in maintaining contact had to be considered alongside the mother’s interest in removing an order made through a fundamentally flawed process, and the child’s own rights.
The ruling does not diminish the importance of family relationships. Rather, it holds that their importance alone cannot justify requiring a successful applicant to finance the correction of serious procedural injustice.
6.4 Denying allegations did not require defending the hearing
The father also relied on his wish to answer serious allegations. The court accepted that he was entitled to deny them and reserve his position. But the judicial review did not determine their truth.
He could therefore dispute the allegations without also maintaining that the District Court hearing was procedurally fair or opposing certiorari. This distinction separates the underlying family dispute from the narrower question whether the judicial process was lawful.
6.5 Refused relief did not justify reducing costs
The mother had sought broader reliefs that were refused because no State actor had been joined to answer them. Those reliefs were not argued at the substantive hearing and generated no additional costs for the father.
Accordingly, their refusal did not warrant a costs reduction. The court’s approach was practical: an unsuccessful pleading point that caused no additional expenditure did not undermine the applicant’s substantive success.
6.6 Legal aid affects recovery, not the allocation of liability
Section 33(2) of the Civil Legal Aid Act 1995 requires costs to be ordered in the same manner and to the same effect as if no party were legally aided. The father’s legal-aid status therefore supplied no reason to depart from the ordinary rule.
The court distinguished entitlement to costs from their actual recovery. Section 36 does not generally make an adverse award payable from the Legal Aid Fund, although a limited statutory possibility of an ex gratia payment exists. An award may consequently be legally justified without guaranteeing reimbursement.
7. The Precise Costs Order
The recoverable costs included:
- the ex parte leave application;
- the stay applications;
- both July 2026 hearings;
- the costs hearing on 5 October 2026; and
- one set of written submissions for the substantive hearing and one set for the costs application.
No costs were allowed for drafting and filing the amended statement of grounds or the child psychologist’s affidavit. The amendment corrected the applicant’s error in constituting the proceedings, which the father should not have to fund. The affidavit was irrelevant to the judicial review issues.
If the parties could not agree the amount, costs were to be adjudicated under Part 10 of the Legal Services Regulation Act 2015.
8. Complex Concepts Simplified
- Judicial review
- A review of whether a public or judicial decision was lawfully reached, rather than a fresh determination of the underlying dispute.
- Legitimus contradictor
- The proper opposing party: someone entitled to defend the challenged decision, but not obliged to do so.
- Certiorari
- An order quashing an unlawful decision. It does not necessarily determine what the replacement decision should be.
- Costs follow the event
- The ordinary starting point that the successful party recovers allowable litigation costs from the unsuccessful party, subject to judicial discretion.
- Distributive costs
- Allocating costs separately between identifiable parts of a case instead of treating the litigation as one indivisible whole.
- Mala fides
- Bad faith. An erroneous judicial decision does not, merely because it is erroneous, establish qualifying personal misconduct.
9. Significance and Future Impact
The judgment provides clear guidance for respondents to judicial review of lower-court orders. Being the required opposing party is not a reason, by itself, to escape costs after unsuccessfully defending the order.
It also highlights the need to reassess opposition as evidence emerges. A transcript or recording may materially change whether continued resistance has an objectively reasonable foundation. Simons J. indicated that withdrawal of opposition upon receipt of the transcript might have supported relieving the father of costs incurred up to that point. That was a possible discretionary outcome, not an established entitlement or an order actually made.
For family-related judicial review, the decision does not create an automatic costs rule against parents defending access arrangements. It applies the existing statutory presumption while rejecting personal sensitivity, good faith and legal-aid status as sufficient reasons, on these facts, to displace it.
Finally, the exclusions demonstrate that even a substantially successful applicant must bear costs caused by their own procedural mistakes or irrelevant material.
10. Conclusion
The central lesson is that compulsory joinder does not mean compulsory opposition, and voluntary opposition carries ordinary costs risk. A parent’s understandable desire to preserve access does not alone justify defending a demonstrably flawed judicial process at the successful applicant’s expense.
The judgment combines a practical assessment of success with an objective, context-sensitive evaluation of litigation conduct. It protects the successful party’s presumptive entitlement while preserving proportionate exclusions for unnecessary or improperly incurred costs.