Feeney v Groves and Ors [No. 2] (Approved)

Factual and Procedural Background

The Petitioner brought an election petition challenging the validity of a Seanad election recount and related transparency decisions. The principal judgment was delivered on 22 October 2025 (Feeney v. Groves & Others [2025] IEHC 633), in which the Petitioner was unsuccessful on all grounds. An oral costs hearing was held before Judge O'Higgins on 19 December 2025. The parties' positions at the costs hearing were: the First Respondent (the returning officer) formally sought costs but made no written or oral submission; the State notice parties participated in the hearing and succeeded but did not seek costs; the Sixth Respondent did not seek costs; the Director of Public Prosecutions did not seek costs; of the participating political party respondents (the fourth, fifth, ninth and tenth named respondents), only the Fifth Respondent sought costs. The court addressed entitlement to costs under s.169 of the Legal Services Regulation Act 2015 and the particular nature and conduct of these proceedings.

Legal Issues Presented

1. Whether, under s.169 of the Legal Services Regulation Act 2015, successful parties (the First Respondent and the Fifth Respondent) are entitled to an award of costs against the unsuccessful Petitioner or whether the court should exercise its discretion to order otherwise having regard to the nature and circumstances of the case and the conduct of the proceedings.
2. Whether the Fifth Respondent, who was a named respondent with a direct legal interest in retaining her seat, should be treated akin to a notice party (with a limited prima facie entitlement to costs) or be treated as a successful respondent entitled to costs.
3. Whether the public-interest character and sui generis features of an election petition concerning recount and transparency rules justify departing from the normal costs rule.

Arguments of the Parties

Petitioner's Arguments

• The Fifth Respondent was, in substance, closer to a notice party than a respondent and therefore had no prima facie entitlement to costs; the Fifth Respondent's participation was optional and intended to protect political interests rather than defend acts impugned in the petition.
• The returning officer and State parties were capable of defending the petition without the Fine Gael respondents, so the Fine Gael respondents should not be indemnified for optional participation; their participation was not necessary and they did not materially advance the defence.
• Authorities such as Sere Holding v. HSE and Little v. Chief Appeals Officer support limiting costs for notice-type parties and recognising the deterrent effect of full adverse costs in public-interest election challenges.

Fifth Respondent's Arguments

• The Fifth Respondent was a named respondent under the Rules of Court with a direct legal interest (her seat was at stake) and was therefore properly entitled to defend the petition and recover costs if successful.
• It would be unjust and deterrent to future candidates if a respondent with a legal interest in maintaining office were deprived of costs; the Fifth Respondent meaningfully participated, called evidence and cross-examined witnesses.
• The Petitioner advanced a changed statutory-interpretation position during the hearing that justified additional work by the Fifth Respondent's legal team.

First Respondent and State Parties' Position

• The First Respondent formally sought costs but elected not to make written or oral submissions; correspondence from Company A acknowledged unusual features of the case and left costs to the court.
• The State notice parties participated fully yet did not seek costs on the basis that no application for costs would be made against them.

Table of Precedents Cited

Court's Reasoning and Analysis

The court started from s.169 of the Legal Services Regulation Act 2015: an entirely successful party is entitled to costs unless the court orders otherwise having regard to the nature and circumstances of the case and the parties' conduct. The parties agreed the First Respondent and the Fifth Respondent were entirely successful, so the default rule applied.

The court analysed (1) the nature of the proceedings and (2) the conduct of the parties. On nature, the court found the petition was sui generis and of public importance: it raised novel recount and transparency issues in Seanad elections and clarified rules on recounts, benefitting the State and election officials. On conduct, the court found the Petitioner acted in good faith, presented evidence responsibly, complied with procedural requirements and advanced a serious, non‑fanciful interpretative argument subject to full judicial analysis (a Heather Hill‑type analysis).

The court considered Sere Holding's principles on notice parties — that a notice party is prima facie not entitled to costs and should minimise participation — but distinguished that case because the Fifth Respondent was a named respondent with a direct legal interest in retaining her seat. The court also weighed the Supreme Court's concern in Little about deterrent effects from adverse costs against fully indemnifying successful respondents.

Balancing these factors, the court concluded justice required a significant departure from the default costs rule. The court awarded no order as to costs for the First Respondent (noting the First Respondent did not press a costs application or file submissions and had acknowledged public‑interest benefits). The court made a limited costs award to the Fifth Respondent restricted to specified items reflecting reasonable and proportionate expenses incurred in responding to additional issues and in protecting her direct legal interest.

Holding and Implications

HOLDING: The court made a mixed costs ruling:

• No order as to costs in favour of the First Respondent (returning officer).
• Limited costs awarded to the Fifth Respondent against the Petitioner, confined to: (a) reasonable solicitor and counsel costs for preparing both sets of written submissions; (b) reasonable costs of preparing the Fifth Respondent's affidavit; (c) reasonable costs of preparing the affidavit of Mr. Terry Murphy; (d) reasonable costs associated with filing the Notice of Intention to Appear for the fourth, fifth, ninth and tenth named respondents; and (e) reasonable costs for solicitor and counsel transcript review for two days to address additional transparency issues raised during the hearing.

Implications: The direct effect is that the Petitioner will not be ordered to pay costs to the First Respondent and will be liable only for the specified limited costs of the Fifth Respondent. The ruling recognises the public‑interest dimension of election petitions and the potential deterrent effect of full adverse costs; it does not purport to establish a broader new precedent beyond the application of established principles in the circumstances of this case.

Appearances (Anonymized)

• For the Petitioner: Attorney Power and Attorney McDowell instructed by Company E.
• For the First Respondent: Attorney Donnelly and Attorney Leonard instructed by Company A.
• For the fourth, fifth, ninth and tenth respondents: Attorney Clarke and Attorney Kelly instructed by Company D.
• For the sixth respondent: Attorney Finn instructed by Company F.
• For the first notice party: Attorney Buckley instructed by Company B.
• For the second and third notice parties: Attorney O'Neill and Attorney McMahon instructed by Company C.