Factual and Procedural Background
This judgment concerns the allocation of legal costs following judicial review proceedings challenging a District Court order concerning child custody and access. The principal judgment, delivered on 7 August 2026, held that the District Court hearing was fundamentally flawed. [1][2]
The District Court order was made on 10 October 2025. The District Court judge was initially joined as a respondent, contrary to Order 84, rule 22(2A) of the Rules of the Superior Courts. An amended statement of grounds removed the judge, but it was filed only belatedly on 28 August 2026. [3][4][5][6]
The Applicant obtained leave to bring judicial review proceedings, and the Respondent became the sole respondent. A stay was granted and extended pending an expedited substantive hearing, with priority given because the proceedings concerned a vulnerable child. [5][7]
The Respondent contested the judicial review in full. Following the substantive hearing, the Court held that the District Court proceedings involved failures concerning the ascertainment and weighting of the child’s views, a fundamental flaw in decision-making, and a denial of justice to the child and the Applicant. [8][9][10][2]
The costs issue was addressed following written submissions and a hearing on 5 October 2026. [11][12][13]
Legal Issues Presented
- Whether the Respondent, having fully contested the judicial review proceedings, should bear some or all of the Applicant’s legal costs. [11]
- Whether the Applicant was “entirely successful” for the purposes of the statutory costs regime. [14][15][16]
- Whether the Court should depart from the default rule that costs follow the event because of the personal significance of the child-access dispute, the Respondent’s legal-aid status, or other circumstances. [17][18][19][20]
- Whether particular costs should be excluded because they arose from the defective original pleading or were irrelevant to the judicial review. [21][22][23]
Arguments of the Parties
Respondent’s Arguments
- The judicial review was premature, the District Court order was interim, and an appeal to the Circuit Court was an adequate alternative remedy. [8][24]
- The District Court hearing was lawful and procedurally fair, and the child’s views were the focus of the hearing. [9]
- The District Court judge was entitled to obtain expert assistance, and the limited access order showed that the judge had not surrendered the adjudicative function. [10]
- The existing expert report remained evidence of the child’s wishes, although the District Court could have obtained updated evidence. [25]
- The judge’s interventions did not establish prejudgment or objective bias, and the Applicant had not been deprived of an opportunity to cross-examine the expert. [26][27]
- The Respondent accepted that the procedure had been unorthodox but submitted that costs should not be awarded, arguing that he had acted to protect a sensitive personal right rather than for financial or material gain. [18]
- The Respondent submitted that it was understandable that he wished to answer serious allegations made against him. [28]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Little v. Chief Appeals Officer [2024] IESC 53 |
The significance of being “entirely successful” in determining entitlement to the statutory presumption on costs. |
The Court used the case to identify which party bore the burden of showing why the ordinary costs position should be displaced. [14] |
| McIlwraith v. Judge Fawsitt [1990] 1 I.R. 343 |
A successful applicant should not ordinarily obtain costs against a lower-court judge absent personal impropriety or mala fides, particularly where the judge did not defend the invalid order. |
The case supported the distinction between proceedings against a lower-court judge and proceedings contested by the opposing party. [29][30] |
| Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4 |
A legitimus contradictor need not oppose judicial review; the applicant must still satisfy the High Court that granting relief is lawful. |
The Court stated that the Respondent could have declined to oppose the application, leaving the Applicant to establish that relief should be granted. [31][28] |
| Kilty v. Judge Dunne [2020] IESC 65, [2024] 3 I.R. 702 |
A party joined as legitimus contradictor has no special immunity from an adverse costs order when choosing to oppose judicial review. |
The Court held that the Respondent’s procedural status did not protect him from costs liability. [32] |
| In the matter of M.V. Lady Magda [2021] IECA 51 |
“Reasonableness” in costs law requires more than good faith and belief in success, but does not require the party to have been legally correct. |
The Court applied this standard in deciding that it was not reasonable for the Respondent to continue fully opposing the judicial review after receiving the hearing transcript. [33][34] |
Court's Reasoning and Analysis
The statutory default position is that a party who is entirely successful in civil proceedings is entitled to costs against the unsuccessful party, unless the Court orders otherwise and gives reasons. [17]
“Entirely successful” refers primarily to the practical substantive result. A party may qualify even if it did not succeed on every individual issue. The statutory scheme also permits costs to be allocated separately by reference to distinct parts of the litigation, although an issue should generally be separated only where it materially affected the proceedings and it was reasonable to raise or contest it. [14][15][35][36][37]
The Court distinguished cases in which a decision-maker is joined as respondent from cases challenging a lower-court decision. Under Order 84, rule 22(2A), the lower-court judge is ordinarily not joined absent allegations of personal misconduct, while the other party to the lower-court proceedings is joined as the legitimus contradictor. That party may participate but is not required to resist the application. [38][39][40][31]
By choosing to contest the judicial review fully, the Respondent accepted the ordinary costs risk. His status as legitimus contradictor did not confer special protection from an adverse costs order. [32]
The Applicant obtained the substantive relief opposed by the Respondent and was therefore entirely successful in the relevant proceedings. Although broader reliefs had been refused, no State actor had been joined in respect of those reliefs, the Applicant did not pursue them at the substantive hearing, and they caused no additional costs. No costs adjustment was therefore warranted on that account. [16][21]
The Court accepted that the Respondent attached significant personal importance to maintaining contact with the child. However, personal importance and good faith were insufficient to establish the objective reasonableness required to displace the statutory costs rule. [41][33][42]
After receiving the transcript, the Respondent should have recognised that the case was exceptional and that successful resistance was unlikely. He nevertheless continued to defend the fairness of the District Court hearing, even after receiving further audio evidence. The Court concluded that it was not reasonable for him to oppose the judicial review in full. [34][43]
The Respondent could have denied the allegations made against him without also maintaining that the District Court hearing was procedurally fair or opposing certiorari. His civil legal-aid status affected recovery prospects but did not alter the allocation of liability for costs. [28][19][20][44]
Holding and Implications
The Applicant was awarded the costs of the judicial review proceedings. The award included specified costs relating to the substantive proceedings, leave application, stay applications, July hearings, and the costs hearing. [45][22]
Costs were excluded for drafting and filing the amended statement of grounds, because the need for amendment arose from the original defective constitution of the proceedings, and for the affidavit of the child psychologist, because it was irrelevant to the judicial review. [23]
If the parties cannot agree, the costs are to be adjudicated under Part 10 of the Legal Services Regulation Act 2015. [46]
The decision directly makes the Respondent liable for the allowable costs despite his status as a legitimus contradictor and legally aided party. The opinion applies existing costs principles and does not state that it establishes a new precedent. [32][44][46]