Kearney v An Taoiseach and Ors (Approved)

Factual and Procedural Background

The Applicant, an army captain at the time, applied for the role of Captain of the Guard administered by Company A. The Applicant was interviewed and informed in March 2021 that he was the preferred candidate, subject to checks including police security clearance. Company A sought standard vetting and broader security clearance from Company B. Company B's security clearance process identified that the Applicant was the subject of an ongoing military police investigation conducted by Company C concerning suspected offences involving military ammunition. Company A informed the Applicant that security clearance was awaited. On 26 November 2021 Company A terminated the Applicant's candidature; on 2 December 2021 Company B confirmed it was not in a position to grant security clearance. The Applicant sought judicial review and obtained leave on 10 December 2021, seeking certiorari quashing the 26 November 2021 and 2 December 2021 decisions, alleging breaches of fair procedures, delay, interference, lack of lawful authority, new eligibility criteria, data protection breaches and interference with his good name. In a judgment delivered in March 2024, the Court (Judge Ferriter) rejected the Applicant's challenges. This document records the costs judgment of Judge Ferriter delivered ex tempore on 13 March 2026, addressing respondents' applications for costs.

Legal Issues Presented

1. Whether the decisions of Company A (26 November 2021) and Company B (2 December 2021) should be quashed for breach of fair procedures, delay, lack of lawful authority, improper interference, or data protection breaches.
2. Whether Company B unlawfully interfered in Company A's selection process.
3. Whether the ordinary rule that costs follow the event should be displaced, i.e. whether the Applicant discharged the burden to justify an alternative costs order.
4. Whether subsequent developments (post-judgment exoneration in military disciplinary proceedings) affect the appropriateness of a costs order against the Applicant.

Arguments of the Parties

Applicant's Arguments

• The security clearance process and subsequent litigation were characterised by withholding of crucial information; had material information (particularly from June 2021) been furnished, litigation could have been avoided.
• A June 2021 note of a phone call between Attorney Casserly (Company B) and Attorney Doolan (Company A) evidenced that Company A knew clearance was unlikely—this deprived the Applicant of the opportunity to engage and correct misunderstandings.
• Post-judgment exoneration in military proceedings shows the allegations lacked substance and supports the contention that the Applicant should not bear costs.
• The issues raised were of general/public importance (public appointment transparency) and thus justify departure from the ordinary rule on costs.

Respondents' Arguments

• The ordinary rule (costs follow the event) should apply pursuant to the Legal Services Regulation Act 2015 and established authorities; the respondents were entirely successful.
• The Commission (Company A) and Company B conducted the security clearance process appropriately, kept the Applicant informed, and properly awaited developments in the military investigation.
• The Applicant's costs arguments amount to a collateral relitigation of findings in the March 2024 judgment and do not justify deviation from the statutory presumption.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began from the statutory provisions (Legal Services Regulation Act 2015, ss. 168–169) establishing the general discretion and the presumption that costs follow the event. The burden rested on the Applicant to show why the ordinary rule should be displaced. The Court analysed the Applicant's three principal bases for departure:

• The Court treated the Applicant's contention of withheld information and non-transparency as effectively relitigating findings already decided against him in the March 2024 judgment. The March 2024 judgment had concluded that security clearance was a foreseeable part of the recruitment process, that the Applicant had been kept informed, and that the security clearance process did not exceed lawful bounds. The Court held that the Applicant could not collaterally attack those findings to resist costs.
• The Court rejected reliance on subsequent post-judgment developments (military exoneration) as irrelevant to the position and decisions in 2021 which focused on the state of play during the recruitment and security clearance period; the Commission's refusal to proceed was based on contemporaneous uncertainty and the absence of clearance, not a concluded finding of guilt.
• The Court rejected the argument that the proceedings raised issues of general or public importance warranting departure from the ordinary rule: the issues were fact-specific applications of established administrative law principles and raised no novel legal point.

On these bases the Court concluded the Applicant had not discharged the burden to justify departing from the presumption, and the respondents were entitled to costs.

Holding and Implications

RESPONDENTS' COSTS AWARDED

Holding: The Court awarded the two sets of respondents their costs of the proceedings against the Applicant, to include reserved or discovery costs; those costs to be adjudicated in default of agreement.

Implications: The direct effect is that the Applicant must pay the respondents' costs as ordered; the decision does not establish a novel precedent—it applies established statutory and appellate authority concerning the presumption that costs follow the event and the burden on an unsuccessful party to show exceptional circumstances to displace that rule.