Public-Interest Departure from the Default Costs Rule in Seanad Election Petitions

Introduction

Feeney v Groves and Ors [No. 2] (Approved) [2025] IEHC 770 is an ex tempore decision of the High Court (O’Higgins J) on costs following the dismissal of a Seanad election petition in the principal judgment Feeney v. Groves & Others [2025] IEHC 633.

The petitioner (an unsuccessful candidate) challenged aspects of the Seanad count, including recount and transparency issues under the Seanad Electoral (Panel Members) Act 1947 (notably rule 14(2) of the Second Schedule). She lost on all grounds. The costs issue was complicated by the public-law character of election petitions, the novelty of the recount issue, and the participation choices of different respondents and notice parties.

Two costs applications ultimately required determination:

  • the returning officer (first respondent) sought costs formally but made no written or oral submissions;
  • the fifth respondent (a Senator whose seat was most directly affected) actively sought costs.

Summary of the Judgment

The Court applied s. 169 of the Legal Services Regulation Act 2015 (default entitlement of an “entirely successful” party to costs, unless the court “orders otherwise” having regard to the nature/circumstances of the case and the parties’ conduct).

Although both the returning officer and the fifth respondent were “entirely successful”, the Court made a marked departure from the default rule:

  • Returning officer: no order as to costs.
  • Fifth respondent (Senator): costs awarded only for defined, limited items:
    1. reasonable costs of preparing both sets of written submissions;
    2. reasonable costs of preparing the Senator’s affidavit;
    3. reasonable costs of preparing an affidavit of a supporting witness (Mr. Terry Murphy);
    4. reasonable costs of filing the Notice of Intention to Appear for the relevant respondents;
    5. reasonable costs for solicitor/counsel review of transcripts for two days, reflecting the “pivoting/morphing” to additional transparency issues.

The Court’s controlling concern was fairness in a sui generis, public-interest election petition, including the risk that full adverse costs could chill future petitions.

Analysis

1) Statutory Framework: s. 169 Legal Services Regulation Act 2015

The Court treated s. 169 as the governing rule. It accepted (without needing to decide) that election petitions were “civil proceedings” for s. 169 purposes; Singh v. McCauley [2025] IEHC 754 was noted as having considered the definition but was not applied in detail.

The Court’s structure followed s. 169:

  • Default rule: an “entirely successful” party is entitled to costs.
  • Departure: the Court may “order otherwise” by reference to (i) the nature and circumstances of the case and (ii) the conduct of the proceedings.

2) Nature and Circumstances: Why Election Petitions Are Different

The Court emphasised features supporting departure from the default rule:

  • Novelty and clarification: this was “the first of its kind” addressing recount/transparency issues in Seanad elections, and it clarified the returning officer’s interpretation of the recount rules (a benefit to the State and election administrators).
  • Constitutional-democratic importance: the proceedings implicated the integrity of parliamentary democracy, including the counting of votes, recount criteria, and transparency. This public dimension “went beyond” the private interests of the candidates.
  • Sui generis incentive structure: the Court accepted that the petition was bound up with participation in the democratic process: but for the petitioner being a candidate who narrowly missed election, the petition likely would not have arisen.

3) Conduct of the Proceedings: Good Faith, Non-Reckless Litigation, and an Arguable “Novel” Point

The Court found the petitioner conducted the case responsibly:

  • she was described in the principal judgment as balanced and straightforward;
  • she moderated criticism of officials and did not personalise allegations;
  • the petition was brought in good faith, driven by sincere concerns about transparency and recount refusal;
  • her statutory interpretation argument on rule 14(2) was not “fanciful or unstateable”; uncertainty in the wording justified judicial interpretation, ultimately undertaken via a “Heather Hill-type” analysis (citing Heather Hill v. An Bord Pleanála [2024] 2 I.R. 222).

While the fifth respondent criticised the timing of the development of the statutory interpretation point, the Court treated it as having been properly signposted during openings and, critically, as a legitimate interpretive issue rather than opportunism.

4) Participation by Multiple Respondents: Reasonable to Participate, Not Always Reasonable to Recover Full Costs

A central tension was the fifth respondent’s role. She was:

  • a named respondent nominated by the petitioner in accordance with Order 97, rule 7 of the Rules of the Superior Courts;
  • the candidate with “the most to lose”, given the closeness of the count and the potential impact on her seat.

The Court accepted it was entirely reasonable for her to participate fully to protect her seat and livelihood. However, it also accepted that her legal team’s submissions largely mirrored those of the returning officer and State notice parties, raising the question whether it was fair to impose the full duplication of costs on an unsuccessful petitioner in a public-interest election petition.

5) Precedents Cited and How They Shaped the Outcome

(a) Sere Holding v. HSE [2023] IEHC 133

The petitioner’s main analogy was to notice party costs principles in Sere Holding v. HSE [2023] IEHC 133, where Twomey J stated that notice parties are prima facie not entitled to costs, particularly where they participate to protect commercial interests and replicate the respondent’s defence.

The Court did not mechanically apply Sere Holding, but treated it as illuminating two distinctions relevant here:

  • Reasonableness to participate vs. entitlement to recover: participation may be reasonable, yet it does not follow that full costs should be shifted.
  • Commercial vs. legal/political interests: the fifth respondent’s interest was not merely commercial; it concerned elected office and democratic legitimacy.

The Court also noted a key factual distinction: unlike the notice party in Sere Holding, the fifth respondent here was a named respondent, not someone applying to join. Even so, Sere Holding helped the Court conceptualise the problem of duplicated defence costs in proceedings with a public-law character.

(b) Sanofi Aventis Ireland Ltd t/a Sanofi Pasteur v. Health Service Executive & Anor [2018] IEHC 719

The Court borrowed from McDonald J’s example in Sanofi Aventis Ireland Ltd t/a Sanofi Pasteur v. Health Service Executive & Anor [2018] IEHC 719 (as discussed in Sere Holding) to craft a tailored, itemised costs order, rather than an “all or nothing” approach. This was pivotal to the compromise outcome: the fifth respondent recovered costs linked to discrete, justifiable work (submissions, affidavits, procedural steps, and transcript review prompted by the evolution of issues), but not the full costs of a complete parallel defence.

(c) Little v. Chief Appeals Officer & Others [2024] IESC 53

The Supreme Court’s “deeply held concern” in Little v. Chief Appeals Officer & Others [2024] IESC 53—that full adverse costs may create an undesirable deterrent effect—was the Court’s principal public-policy anchor for departing from the default rule. O’Higgins J expressly treated the petition as ticking multiple “public interest” boxes and relied on Little to justify limiting exposure, notwithstanding the petitioner’s complete failure on the merits.

(d) Heather Hill v. An Bord Pleanála [2024] 2 I.R. 222

While not a costs authority, Heather Hill v. An Bord Pleanála [2024] 2 I.R. 222 mattered to the costs analysis because it supported the conclusion that the petitioner’s interpretive argument required serious adjudication and was not abusive. That assessment fed directly into the “conduct” limb of s. 169.

(e) Singh v. McCauley [2025] IEHC 754

Singh v. McCauley [2025] IEHC 754 was referenced for its discussion of “civil proceedings” under s. 169, but the point was uncontested here and did not drive the result.

6) Why the Returning Officer Received “No Order as to Costs”

Several factors converged:

  • Non-adversarial posture on costs: the application was not pressed; there were no written or oral submissions. The Court treated this as relevant “mood music”.
  • Public benefit: clarification of recount rules benefited the State and election administration.
  • Public-interest character: imposing the returning officer’s full costs risked over-deterrence in an area where legal scrutiny may be democratically valuable.

7) Why the Fifth Respondent Received Only Limited, Itemised Costs

The Court balanced two propositions it accepted simultaneously:

  • Legitimacy of participation: she could properly defend a seat directly at stake.
  • Fairness in cost-shifting: where much of the defence overlapped with the returning officer/State parties, full indemnification risked disproportionate punishment and deterrence.

The result was a calibrated order that:

  • recognised concrete work that was reasonable and/or specifically responsive to the petitioner’s case development;
  • avoided shifting the whole cost of a fully replicated defence onto the petitioner.

The Court also credited the petitioner’s stance in not pursuing costs against the returning officer/State notice parties, treating it as a responsible litigation posture consistent with the public-interest nature of the proceedings.

Impact

  • Election petitions as a special costs environment: even under s. 169’s strong default rule, election petitions can justify substantial departures where the case is bona fide, raises novel issues, and has systemic democratic importance.
  • Granular costs management: the decision exemplifies a practical technique—itemised costs orders—to reconcile (i) a successful party’s legitimate interest in costs with (ii) the public interest in avoiding deterrence.
  • Guidance for candidate respondents: candidates whose seats are at stake may reasonably participate, but this judgment signals that full costs recovery is not automatic where their participation duplicates a primary defence.
  • Guidance for petitioners: responsible pleading, restrained allegations, and bona fide interpretive arguments can materially affect costs exposure even after complete loss on the merits.

Complex Concepts Simplified

  • “Entirely successful” (s. 169): a party who wins across the board. The default is they get their costs, but the court can depart from that default.
  • “No order as to costs”: each side bears its own costs (no cost-shifting).
  • Notice party vs. respondent: a notice party is typically joined because their interests may be affected; a respondent is a party against whom relief is sought. Here, the fifth respondent was formally a respondent (Order 97, rule 7), but the petitioner argued her functional position resembled that of a notice party for costs purposes.
  • “Heather Hill-type analysis”: a structured approach to statutory interpretation focusing on text, context, and purpose; its relevance here was to show the argument required serious judicial engagement, supporting a finding of responsible conduct.
  • Deterrent effect: the risk that heavy adverse costs would discourage future litigants from bringing meritorious public-interest challenges (as emphasised in Little).

Conclusion

[2025] IEHC 770 demonstrates that, notwithstanding s. 169 of the 2015 Act, the High Court will treat election petitions as sui generis public-interest litigation capable of justifying substantial departures from the default costs rule. The Court’s key move was to avoid an all-or-nothing approach: it denied the returning officer costs entirely and confined the successful candidate-respondent to a limited menu of reasonable, attributable costs. The decision’s likely long-term significance lies in its method—calibrated, itemised costs orders—for protecting democratic accountability without imposing a prohibitive financial penalty on bona fide petitioners.