The High Court has ordered each side to bear its own costs after dismissing Tomás Heneghan’s challenge concerning electoral law and the election of vocational senators.
The Divisional Court delivered its costs ruling on 20 December 2021, following a hearing on 8 December. The court said it had dismissed Heneghan’s claim in its entirety in a judgment delivered on 17 November. The costs ruling did not alter that outcome; it decided only who would bear the costs of the proceedings.
The State argued that costs should follow the event and relied on provisions of the Legal Services Regulation Act 2015. It also pointed to offers made in correspondence in October and December 2020, inviting Heneghan to discontinue the case on terms that there would be no order as to costs. His solicitors rejected the proposals. The court accepted that their concern was substantive: the correspondence did not address the Convention rights he had raised, and the proposed private members’ bills did not assure him that his complaints would be resolved.
Heneghan’s counsel sought an order that the State pay his costs, suggesting a contribution of between one third and two thirds. She relied on the novelty and public importance of the issues and argued that the case was not brought for personal advantage. The court accepted that Heneghan was motivated by public spirited reasons, while noting that success could potentially have moved him towards participating in the direct election of Seanad members.
The court said the constitutional importance of electoral law and the risk that adverse costs could deter bona fide challenges supported departing from the usual rule that costs follow the event. It also considered the State’s offer to let Heneghan withdraw after he and his lawyers had received the evidence and submissions. He declined, leaving the State to incur the expense of the hearing. The court described his case as weak and said it relied on evidence that was irrelevant and inadmissible.
Balancing those matters, the court made no order as to costs. It did not order the State to pay Heneghan’s costs or require him to pay the State’s costs. The ruling was delivered electronically. The court also expressed sympathy to the family of Frank Callanan SC, leading counsel for the State, whose death occurred after the costs decision had been reached.