The High Court awarded petitioner Joanna Jordan one third of the costs of her failed challenge to the 2012 Children referendum, including any reserved costs. Mr Justice McDermott delivered the costs judgment on 22 November 2013. The respondents had successfully defended the petition and did not seek costs against her.
Jordan had sought to annul the provisional referendum certificate for the poll held on 10 November 2012. Her case followed the Supreme Court’s ruling in *McCrystal v Minister for Children and Youth Affairs*, which found that the government’s publicly funded information campaign breached constitutional principles requiring referendum campaigns to be fair, equal, impartial and neutral. Jordan argued that the campaign materially affected the referendum result as a whole, relying in part on expert evidence.
The High Court heard the leave application and the substantive petition together over 14 days. In its judgment on 18 October 2013, the court dismissed the petition. The costs judgment addressed whether Jordan should nevertheless receive costs. The court noted that it had earlier found a serious issue to be tried and granted leave to bring the petition; that finding was a threshold decision, not a determination that the campaign changed the result.
Jordan’s counsel argued that the case was brought in the public interest, raised issues of public importance and followed established constitutional wrongdoing. The respondents said the legal principles were already clear and that the petitioner’s failure meant there was no basis to award her costs.
The judge held that the statutory discretion over costs had to be exercised under the ordinary principles, including the usual rule that costs follow the outcome. He found that the legal issues were not novel: the earlier Supreme Court decision in *Hanafin v Minister for the Environment* had established the relevant principles, which the court applied to this case.
However, the judge also found that the petition was a reasonable response to the public debate prompted by the *McCrystal* ruling. Jordan had acted in good faith and without a private interest, and the case raised a significant constitutional concern about the possible effect of government misconduct on the people’s exercise of sovereignty. Weighing those circumstances against the respondents’ success, the court ordered them to pay one third of Jordan’s costs. It did not set aside the referendum result or order a further referendum.