The Supreme Court ruled that Dan Kiely’s appeal over the 2014 Listowel local election was properly initiated, but did not decide whether the election count was conducted lawfully. It found the appeal had been transferred to the Court of Appeal and said it would cancel that transfer if the parties made an oral application, allowing the case to be heard on its merits in the Supreme Court.
Kiely had challenged aspects of the count. The Circuit Court, where Judge Moran heard the election petition, dismissed it and affirmed the result declared by the returning officer. Kiely then sought to appeal on a question of law.
The Supreme Court considered conflicting procedural rules. The Local Elections (Petitions and Disqualifications) Act 1974 provided for an appeal on a question of law, while Circuit Court rules described the process as a case stated, which would normally involve the trial judge settling the document after consulting the parties. The document filed for Kiely’s appeal had not been referred to the trial judge.
Justice Clarke held that the Act created an ordinary appeal on a question of law, rather than a case stated. He said the Circuit Court rules were ultra vires to the extent that they required the appeal to be treated as a case stated or its notice to be settled by the trial judge. The appeal was therefore properly brought, and defects in its form could be overlooked.
The Court also held that a direction made on 29 October 2014 had transferred the appeal to the Court of Appeal. It rejected Kiely’s argument that the Act’s statement that a decision was “final and not appealable” prevented that transfer. The Court interpreted that wording as making the Circuit Court’s decision final except for the statutory appeal on a question of law.
However, Clarke said the appeal met the criteria for cancellation of the transfer, citing the importance and urgency of the legal issues, including their potential relevance to future elections. He was prepared to dispense with a formal written application and grant cancellation if the parties made an oral application. The judgment records that the parties had not made such an application because they believed the appeal had not been transferred.
On the transcript, Clarke said there was no need to file a transcript of legal arguments made in the Circuit Court, unless counsel’s position changed on whether any point depended on what had been raised there. He made no special order on the cost of obtaining the evidence transcript, leaving those costs to be dealt with under the ordinary practice. The judgment proposed an early hearing on the merits if the transfer were cancelled; it did not itself decide that the transfer had been cancelled or determine the election appeal.