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TikTok Inc v Rosendin Inc (No 2)
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, dated 10 October 2025. [1][2]
The Applicant initially joined the District Court judge as a respondent, contrary to the applicable procedural rule. An amended statement of grounds removing the judge was prepared but filed late. Leave was subsequently granted by reference to the amended grounds, and the Respondent became the sole respondent. [3][4][5]
The High Court granted and extended a stay, expedited the substantive hearing because the case concerned a vulnerable child, and directed that a transcript of the District Court hearing be prepared. [6][7] The Respondent fully contested the judicial review, arguing that it was premature, that the District Court order was interim, and that an appeal provided an adequate alternative remedy. [8][9]
In the principal judgment, the Court found that the District Court hearing was fundamentally flawed, including through failures concerning the ascertainment and weighting of the child’s views, the decision-making process, and the administration of justice to the child and the Applicant. [10] The present judgment determined the resulting costs issue. [11]
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 statutory default rule that costs follow the event should be displaced because of the sensitive nature of the access dispute, the Respondent’s reasons for opposing the proceedings, or his receipt of civil legal aid. [12][13][14]
- Whether particular aspects of the litigation should be excluded from the costs award. [15][16][17]
Arguments of the Parties
Respondent’s Arguments
- The Respondent argued that the proceedings were premature, that the District Court order was interim, and that an appeal to the Circuit Court was an adequate alternative remedy. [8][9]
- He defended the lawfulness and procedural fairness of the District Court hearing, including the treatment of the child’s views and the expert evidence. [18][19][20]
- He denied that the District Court judge had demonstrated prejudgment or objective bias and argued that the Applicant had not been deprived of an opportunity to cross-examine the expert. [21][22]
- In relation to costs, he accepted the general principle that costs normally follow the event but submitted that he had acted to protect a sensitive personal right of access to his child, rather than for financial or material gain. [12][23]
- He also relied on his need to answer serious allegations made against him and on his status as a legally aided party. [13][14]
Applicant’s Position
- The Applicant pursued the setting aside of the invalid District Court order and sought recovery of the costs incurred in successfully obtaining judicial review relief. [11][15]
- The Applicant’s representatives drew attention to subsequent District Court proceedings and provided submissions concerning the relevant audio recording. [24][25][26]
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 who benefits from the statutory presumption on costs. | The Court treated the Applicant as entirely successful in relation to the relief opposed by the Respondent. [27][15] |
| McIlwraith v. Judge Fawsitt [1990] 1 I.R. 343 | A successful applicant should not ordinarily obtain costs against a lower-court judge where there is no allegation of personal impropriety or mala fides and the judge has not defended the impugned order. | The decision supported the distinction between the lower-court judge and the opposing party joined as legitimus contradictor. [28][29] |
| Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4 | A party joined as legitimus contradictor need not oppose judicial review; if it does not participate, the applicant must still establish that granting relief is lawful. | The Court stated that the Respondent could have declined to oppose the proceedings, leaving the Applicant to establish the grounds for relief. [30][31] |
| Kilty v. Judge Dunne [2020] IESC 65, [2024] 3 I.R. 702 | A participant who actively opposes judicial review is not protected from an adverse costs order merely because of the manner in which it was joined. | The Court held that the Respondent’s status as legitimus contradictor did not protect him from costs liability. [32] |
| In the matter of M.V. Lady Magda [2021] IECA 51 | “Reasonableness” in costs requires more than good faith and belief in success, but does not require that the party ultimately be correct. | The Court held that the Respondent lacked an objective basis for continuing to contest the proceedings after receiving the hearing transcript and audio recording. [33][34][35] |
Court's Reasoning and Analysis
The statutory default under the Legal Services Regulation Act 2015 is that a party entirely successful in civil proceedings is entitled to costs against the unsuccessful party, unless the Court orders otherwise and gives reasons. [36]
“Entirely successful” is assessed by reference to the practical substantive result, even if the successful party did not prevail on every individual issue. The legislation also permits costs to be allocated distributively by reference to separable parts of the litigation. [27][37][38][39][40]
The Respondent was joined as the legitimus contradictor under the procedural rules because the proceedings challenged a lower-court decision. That status did not oblige him to participate or oppose the application, and it did not confer immunity from an adverse costs order. [41][42][30][32]
The Respondent nevertheless contested the proceedings in full, including after receiving the District Court transcript. The Court held that the Applicant was entirely successful in respect of the relief opposed by the Respondent. [43][44][15]
Although broader relief had been pleaded and refused, no State actor had been joined in respect of that relief, the Applicant did not pursue it at the substantive hearing, and the Respondent incurred no additional costs because it had been pleaded. No costs adjustment was therefore warranted on that basis. [45]
The sensitive personal importance of maintaining child access did not, without more, make it reasonable to oppose the judicial review in full. After reviewing the transcript and subsequent audio recording, the Court concluded that the Respondent should have recognised the exceptional nature of the case and the lack of a real prospect of successfully resisting the application. [46][34][35]
The Respondent could have denied allegations made against him while reserving his position, without also defending the procedural fairness of the District Court hearing or opposing certiorari. His legal-aid status affected possible recovery but did not alter the allocation of liability for costs. [13][14][47]
Holding and Implications
The Applicant was awarded the costs of the judicial review proceedings, subject to specified exclusions. Recoverable costs included the ex parte leave application, stay applications, hearings in July 2026, the substantive hearing, the costs hearing, and one set of written submissions for both the substantive proceedings and the costs application. [16]
No costs were allowed for preparing and filing the amended statement of grounds or the child psychologist’s affidavit. The amendment resulted from an error in constituting the proceedings, and the affidavit was irrelevant to the judicial review issues. [17]
If the parties could not agree, the costs were to be adjudicated under Part 10 of the Legal Services Regulation Act 2015. The direct consequence was that the Respondent became liable for the allowable costs despite having been joined as legitimus contradictor and despite receiving civil legal aid. [47][48]
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