Judgment: 2026-08-12 · Court archive

No costs order after Gerard Kelleher loses prison sentencing law challenge

High Court · [2026] IEHC 583

Who, what, where, when and why

Who
  • Gerard Kelleher
  • Irish Prison Service
  • Mr Justice Conleth Bradley
  • Ms Justice Kennedy
What

No costs order after Gerard Kelleher loses prison sentencing law challenge

Where

Places mentioned in the report

  • High Court
When

Judgment:

Other dates in the report
  • 4 February 2025

    By the time the substantive case was heard, however, Kelleher had already been released from prison on 4 February 2025 following the application of enhanced remission provisions.

Why

Reasons reported in the judgment

Kelleher had challenged the interpretation and validity of parts of section 27(3) of the Misuse of Drugs Act 1977 on constitutional and European Convention on Human Rights grounds. The High Court rejected his interpretation of the legislation and dismissed both legal challenges.

The High Court has ruled that Gerard Kelleher will not have to pay the State's costs of his unsuccessful judicial review challenge concerning sentencing provisions for serious drug offences.

Mr Justice Conleth Bradley delivered the costs judgment on 12 August 2026 following the earlier substantive decision in Kelleher v The Irish Prison Service (No. 2).

Kelleher had challenged the interpretation and validity of parts of section 27(3) of the Misuse of Drugs Act 1977 on constitutional and European Convention on Human Rights grounds. The High Court rejected his interpretation of the legislation and dismissed both legal challenges.

By the time the substantive case was heard, however, Kelleher had already been released from prison on 4 February 2025 following the application of enhanced remission provisions.

The State had previously sought to halt the judicial review proceedings as moot because of his release. That attempt failed in May 2025, when Ms Justice Kennedy ruled that the proceedings should continue because of the nature and potential recurrence of the legal issue. The State was separately ordered to pay Kelleher's costs of that earlier application.

The latest judgment concerned only the costs of the substantive case. Both sides sought their costs.

Mr Justice Bradley found that Kelleher's proceedings met the Supreme Court's definition of public interest litigation. Although the case was not sufficiently exceptional to justify ordering the State to pay the costs of an unsuccessful applicant, the judge concluded that Kelleher should also be protected from an adverse costs order.

He noted that Kelleher no longer had a personal benefit to gain when the substantive case was heard, while the State and relevant groups of prisoners benefited from clarification of the law. The court also recognised some complexity in the relationship between the statutory provisions involved.

The result was no order as to costs for the substantive judicial review proceedings.

Read the original court judgment

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