Kearney v An Taoiseach and Ors

Record no. 2021/1055JR [2026] IEHC 245 THE HIGH COURT JUDICIAL REVIEW Between ALAN KEARNEY Applicant and AN TAOISEACH, THE HOUSES OF THE OIREACHTAS COMMISSION, THE COMMISSIONER OF AN GARDA SIOCHÁNA, THE MINISTER FOR JUSTICE, IRELAND and THE ATTORNEY GENERAL Respondents Costs Judgment of Mr Justice Cian Ferriter delivered ex tempore on 13 March 2026 1. This is my judgment which I am giving on an ex tempore basis in respect of the question of costs in these proceedings 2. By way of context to the costs application, it is useful to briefly reprise what was at issue in these judicial review proceedings. The applicant sought in the proceedings to challenge a decision-making process which led to his candidature for the position of Captain of the Guard at the Houses of the Oireachtas being terminated. He also sought to challenge a related decision of An Garda Síochána to the effect that they were not in a position to provide security clearance for the applicant in relation to that position. In short, the competition for the position was run by the second respondent, the Houses of the Oireachtas Commission, which I will refer to as the Commission for ease. The applicant, who was at the time of his candidature for the competition, an army captain, 1 applied for the position and he was interviewed. He was told in March 2021 that he was the preferred candidate for the position, subject to various checks including garda clearance. The Commission instigated both standard garda vetting and broader garda security clearance with An Garda Síochána. The security clearance process identified that the applicant was the subject of an ongoing military police investigation into suspected criminal offences concerning army ammunition. The Commission kept the applicant informed that security clearance was awaited. Ultimately, as a result of the ongoing military police investigation, the Garda Síochána were not in a position to give security clearance. 3. On 26 November 2021, the Commission took the view that as security clearance had not been forthcoming for the applicant it would terminate his candidature for the position and that was communicated in writing. On 2 December 2021, the Gardaí Síochána confirmed in writing to the Commission that it was not in a position to give security clearance for the applicant. The applicant then launched these proceedings shortly afterwards (he obtained leave on 10 December 2021) and in the proceedings, he sought orders of certiorari quashing the decisions of the Commission of 26 November 2021 and of the Garda Síochána of 2 December 2021. His essential complaints related to an alleged breach of fair procedures, including a failure to notify him of and allow him to engage in the security clearance aspect of the decision-making process, and he also alleged delay on the part of An Garda Síochána in relation to the security clearance exercise. He also made complaints in relation to alleged breaches of his data protection rights. The fair procedures case was presented on a wide range of grounds including an alleged lack of transparency in relation to the security clearance aspect of the process, that the security clearance process was a capricious one with no lawful authority or oversight. It was alleged there was a lack of lawful authority for the conduct of the security clearance exercise. It was alleged that there had been new eligibility criteria introduced inappropriately. It was alleged that there was an interference by An Garda Síochána in the Commission's decision-making process and it was alleged that there was a delay in determining the security clearance and the applicant also then alleged a breach of his right to a good name. 4. For the reasons set out in a judgment I delivered in March 2024 I comprehensively rejected all of the grounds of challenge and concluded that the applicant was not entitled 2 to any of the relief he sought. I think it is appropriate at this juncture that I quote from what I said at paragraph 87 of my judgment. This is my conclusion on the fair procedures aspect of the applicant's case. I said: "The applicant, as he properly accepts, had no right to be awarded the job. Security clearance was flagged in the booklet as a likely step and was, as a matter of common sense, engaged in by the Commission in respect of a manifestly security-sensitive position. The Commission in its communications with the applicant at all times made clear that there was a process of security clearance ongoing and kept him in the loop in relation to that. That security clearance process did not step beyond any reasonable or lawful bounds, it in fact correctly established that the applicant was the subject of an ongoing military police investigation into prima facie serious matters. An Garda Síochána in fairness to the applicant did not jump to refusing security clearance, but rather reasonably awaited details as to the outcome of the military police investigation. That investigation took longer than originally envisaged. When objectively viewed through the prism of what in fact was going on in the period May to November 2021, I do not see how the applicant has any ground for legal complaint in terms of the lawfulness of the process or how that process was in any sense of the word unfair." 5. So I come now to the costs application before me this morning. The respondents seek their costs on the basis that the ordinary rule should apply, that costs should follow the event. I should say that there are effectively two sets of respondents for costs purposes. The Commission as the second respondent was separately represented from the other respondents and those other respondents include as I have noted An Garda Síochána. The applicant resists the application for costs made by the respondents and submits that I should either order the applicant his costs or alternatively that I could make no order as to costs. 6. I might just turn to the relevant legal principles. The principles applicable to determination of cost applications are not in dispute. The starting point is sections 168 and 169 of the Legal Services Regulation Act 2015. Section 168(1)(a) of the 2015 Act provides that a Court may order that a party to civil proceedings pay the costs of or 3 incidental to those proceedings of another party. That section also confirms that the general discretion of the Court in connection with the ordering of costs is preserved. Section 169 of the 2015 Act establishes the general rule governing costs. It provides that, "a party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings unless the court orders otherwise, having regard to the particular nature and circumstance of the case and the conduct of the proceedings by the parties." The statutory scheme therefore creates a presumption that costs follow the event. The operation of that regime was summarised by Mr Justice Murray in his judgment in the Court of Appeal case of the Chubb European Group v. Health Insurance Authority, [2020] IECA 183 at paragraph 19, where he confirmed that a party who has been entirely successful is ordinarily entitled to its costs unless the Court identifies particular circumstances which justify a different order. As Mr Justice Murray put it, in determining whether to order otherwise, that is to disapply the ordinary rule, the Court should have regard to, "the nature and circumstance of the case", and, "to the conduct of the proceedings by the party". The conduct of the proceedings by the parties can include the conduct before and during the proceedings and whether it was reasonable for a party to raise, pursue or contest one or more issues. The burden therefore lies on the applicant to identify circumstances which would justify a departure from the ordinary rule. 7. Turning then to the matters which are raised by the applicant in support of his submission, that the ordinary rule should be departed from in the circumstances of this case, either by awarding costs in his favour or making no orders as to costs. The applicant's key submission as advanced by Mr Humphreys orally this morning on the applicant's behalf and as also contained in the written submissions helpfully filed in relation to the costs applications, is that both the security clearance process as part of the selection process and it seems, he says the conduct of these proceedings was characterised by the withholding of crucial information, the proper furnishing of which in a timely fashion would have obviated the need for these proceedings. A central theme of the applicant's submission on costs is the contention that the security clearance process was conducted in a secretive or non-transparent way, that relevant information, particularly from June 2021, which I will come back to in a moment, was withheld from him, and that if he had been properly furnished with information, particularly in June 2021, as to the developments in the security clearance process, he would not have had 4 to institute these proceedings. So the applicant alleges in this context that the evidence in the case shows that there were misleading communications, as he puts it, from the Commission and the Gardaí, and he points in that regard to a note of a phone call between Inspector Casserly of An Garda Síochána, who was involved in conducting the security clearance exercise on behalf of Garda Síochána and the Superintendent, of the Commission service, Superintendent Teresa Doolan, in June 2021. He says that this communication, evidenced that the Commission knew from that point that garda security clearance was unlikely to be forthcoming. He says that if the stance of the Gardaí as to the likelihood of security clearance being refused was communicated to him properly at that point, that is in June 2021, during the recruitment approval process, he would have been in a position to address what underlay the potential refusal of clearance at that point and ultimately it is intimated he would not have had to take these proceedings. 8. Mr Humphreys put the matter on the applicant's behalf in a variety of different ways which I think amount in substance to the same thing. He said that he was left in the dark in relation to what was going on at that time. He said he was left wasting on the vine. He had no avenue to engage with the security clearance process and thereby correct any misunderstandings that may have been arising at that point. He said that had he known what was occurring behind the scenes in June 2021 in the security clearance process, he would have been able to effectively exonerate himself at that point in time. And I think the intimation is that that would have resulted in a position where these proceedings would not have had to issue. In the context, he contrasts the position as between garda vetting in the ordinary course and the security clearance process engaged in by the gardaí. He says on the garda vetting side there is clear transparency, there is a right to a decision and an appeal, but no such transparency in relation to the security clearance process. And as I have noted he contended that this resulted in a position where there was no avenue to engage with the process. And all of this, he says, is relevant in the context of an assessment of the costs in the proceedings, I think on the basis that he's contending that if there had been proper conduct by the respondents during the course of the selection or the security clearance process, that would have obviated the need for the proceedings. And in that way, it is a relevant matter to the exercise of the Court's discretion. 5 9. In my view, while I appreciate that these arguments were advanced bona fide and with vigour by Mr Humphreys, I do think that this is an inappropriate attempt to relitigate the substance of matters in respect of which I held against the applicant in the course of the judgment I delivered in March 2024. And I just want to cite from a number of paragraphs of that judgment to support the view that I have arrived at. So, if I can turn firstly to paragraph 61 of the judgment, this was in a context where I had introduced the fair procedures case being made by the applicant and it was highlighting the importance of context to an assessment of the level of fair procedures protections that might be available. And I had made the point at paragraph 60 that the types of fair procedures that arise vary depending on the context, and I noted at paragraph 60, "it could not plausibly be contended that an applicant for a public service job competition would be entitled as a matter of public law fair procedures to be kept informed of and if necessary make representations in relation to stages in that process which might result in the applicant being ruled out for the job, for example because a referee had not given a good reference or a medical examination disclosed issues with the applicant's health." 10. I then went on to say in paragraph 61, "I do not see that the position is any different in principle in relation to security clearance checks conducted on a candidate for a manifestly security sensitive public service position. Security clearance is simply another part of the fact checking appraisal process engaged in during the recruitment process for a position that has a security sensitive dimension. As set out at paragraph 7 of the judgment, the candidate information booklet had a section headed 'Security Clearance' which made clear that police vetting would be sought and which envisaged wide security checks within its terms. The applicant consented to garda vetting. He also consented to such further inquiries as would be appropriate to determine his suitability for the position. Given the nature of the position, common sense dictated that such inquiries would extend to a general garda security clearance check." 6 11. And the next sentence is I think particularly relevant to the views I have arrived at in the costs question, which is, "common sense equally dictates that the subject of such a security clearance check would not have some sort of rolling right of engagement or representation making in that process." 12. I just want to turn then to what I said at paragraph 67 of the judgment, which was as follows: "While the applicant sought to characterise the security clearance process as some form of secret, unauthorised, underhand process, the reality is far more prosaic. The Commission, through a garda superintendent attached to the Houses of the Oireachtas Service, sought security clearance from An Garda Síochána in relation to a manifestly security-sensitive position in our National Houses of Parliament. The candidate information booklet made it clear that security clearance in the form of police vetting was required. The Commission told the applicant that they were waiting on such security clearance and kept him informed at all times of the status of the security clearance process. An Garda Síochána were aware from information on their files that a military police investigation into the applicant was underway. That was correct as a matter of fact. An Garda Síochána contacted the Defence Forces for updates on that investigation and such updates were provided. The applicant was at all times well aware of the fact of the military police investigation. The complaint as to lack of transparency or some fundamental unfairness in process simply does not get off the ground in the circumstances." 13. I then noted further at paragraph 70 that the applicant had made reference to being denied security clearance as a result of some form of shadowy process of innuendo and I rejected that contention or that there was anything “Kafkaesque”, as had been put by counsel for the applicant, about the security clearance process. And I made that clear at paragraph 72 of my judgment. 14. I then went on at paragraphs 78 to 81 of the judgment to reject the contention that the 10th of June 2021 note of the call between Inspector Casserly and Superintendent Dooley, upon which the applicant lays considerable emphasis in the context of the costs 7 hearing, an unlawful interference by An Garda Síochána in the Commission's selection process. And at paragraph 80, I held: "Inspector Casserly is recorded in his note of the call as offering an opinion on the likely outcome of the clearance process. This expression of opinion, which in truth was a perfectly sensible opinion in the circumstances, can hardly be taken as unlawful interference in the Commission's decision-making process. Nor do I read anything improper in the note of the last part of the call where there's a reference to Inspector Casserly advising that vetting is one part of the applicant's process and that the job should not be offered or not solely on the basis of vetting. That is to no more than state the obvious, vetting is simply one part of the overall selection process. There is simply no evidence substantiating the serious allegations that An Garda Síochána somehow tried to interfere with the Commission's decision-making, and I find that no such inference occurred." 15. I then went on at paragraph 81 to note that it was objectively clear from the record of email exchanges between the Service Superintendent and An Garda Síochána that what was happening in the period April to November 2021 was that the Commission was chasing the Gardaí for updates on the security clearance position and An Garda Síochána were carefully and correctly conveying the position that they were not in a position to give security clearance given that they were awaiting developments in the military police investigation. And I might note in that context that I had earlier in the judgment at paragraph 51 accepted the truth of Inspector Casserly's averments as to the process. In my view the applicant cannot now seek to rely on a characterisation of events for cost purposes which amounts in truth to a collateral attack on those findings which are binding on the applicant unless and until an appeal court holds otherwise. I found that there had been no improper withholding of information by the respondents. I cannot now disregard that for the purposes of the costs application. I rejected the applicant's case that there was a lack of transparency in relation to the security clearance process. And I made clear my view that the applicant had no right to rolling engagement or a right to make representations during the currency of the security clearance process. I do not believe that the applicant can now in substance seek to reopen those findings on the question of costs. 8 16. I want to turn next to the applicant's efforts to rely on a series of developments which occurred subsequent to my judgment, in essence amounting to a contention that he was exonerated in the court martial process and that he was ultimately found innocent of the charges, the subject of the military investigation. So the applicant seeks to contend based on this outcome that this simply confirmed that there was no substance to the allegations which resulted in him not getting garda security clearance. And again he contends that had the respondents been more forthcoming during the course of the security clearance process in particular in June 2021 as to what was going on behind the scenes, he would have been able to expose the falsity of the allegations as he put it. And again the contention is made that this would have obviated the need for the litigation. 17. I do not believe that this submission is well founded, both for the reasons I have already given in respect of the first set of arguments which is that this is in truth another dressed up collateral attack on my findings in the judgment, but also because I think it is based on a false premise. The Commission did not decide not to appoint the applicant to the post because it was of the view that he was guilty of the matters the subject of the charges in the military investigation process. It was rather focused on events in 2021, which were the events which occurred in the context of the recruitment process and the security clearance part of that process. And just to recall what had been said at paragraphs 55 and 56 of my judgment, in the section of my judgment headed 'The Military Police Investigation', which went from paragraphs 52 to 56 of my judgement. I noted that at paragraph 54, that a letter had been received stating that the military police investigation into the applicant was initiated in November 2020 and was ongoing, at that time in May 2021. That military police had indicated that they had sufficient evidence to initiate disciplinary proceedings against the applicant for a number of offences against military law, including possession of a large quantity of defence forces munitions, that the applicant's home had been searched under District Court warrant on 11 May 2021, that it was hoped that the applicant would be interviewed under caution by military police the following week, ( i.e. a week in May 2021) and that it was the intention of the military police to conclude the investigation by the end of May 2021. I noted at paragraph 55 of my judgment that the interview did not ultimately take place until 7 July 2021. It further seems that the military police investigation led to the suspension of the applicant from at least some of his duties in 9 July 2021. These of course were all matters of which the applicant was all fully aware because of his personal involvement in those matters. 18. I noted then at paragraph 56 of the judgment that, "from An Garda Síochána security clearance perspective, the fact of this military investigation was clearly relevant to the question of whether security clearance could be provided by the applicant and the Garda National Security Vetting Unit understandably sought to await developments in the military police investigation before forming a view on the security clearance questions." The reason why I think it is important to emphasise those matters is that the understandable focus was on the state of facts and the state of play in relation to the fact of the military police investigation during the course of 2021. And it seems to me, as I noted in the judgment, that the position was that the Commission made appropriate inquiries of the gardaí in relation to security clearance. This process identified that the applicant was a subject of a then ongoing military police investigation process. The Gardaí were unable to provide security clearance in the circumstances. Time was allowed to see if the military investigation process could come to a conclusion. It had not come to a conclusion by November 2021 and the Commission entirely reasonably decided to terminate the applicant's candidature and to move on. The fact that the applicant now says that he was subsequently exonerated in the military courts process is in my view simply irrelevant to the issues in the proceedings and the proper determination of those issues which were focused on the time period March to December 2021. It is also in my view the case that the subsequent post-judgment developments are simply irrelevant to the question of the conduct of the defence of the proceedings by the respondents. So this is not in my view a basis upon which the applicant can now seek to resist an order for costs against him, let alone ground an order for costs in his favour. 19. I just want to deal then finally with what in substance was a third argument advanced by the applicant in support of his submission that the normal rule as to costs should be disapplied in this case. This was to the effect that the issues raised by him in these proceedings were of a special and general public importance which would justify the Court departing from the normal rule by reference to the well-established jurisprudence in relation to that matter, which is summarised in the applicant's written submissions on this costs application. What is said in support of that contention is that this was a public 10 appointment process, that as such those involved must, like Caesar's wife, be absolutely transparent in the course of their proceedings, that it must be clear who is taking decisions and what is going on at every material stage of the process and therefore the matters raised were of public importance. 20. In my view, no issue of wider general or public importance was raised in these proceedings. The proceedings were taken by the applicant at his own behest in pursuit of his own personal interests. The issues were raised by him in a specific factual context, and the determination of those issues involved the application of well-established principles of administrative law to that specific factual context. There was no novel or transcendent legal issue in the proceedings in my view, so the case law in relation to the Court not applying the normal rule of costs in the circumstances where important issues of law of wider public importance have been determined in the proceedings, just does not have any application in the question of costs in these proceedings. 21. For all those reasons, it seems to me that the applicant has not discharged the burden of demonstrating that the default rule as to costs should not apply in this case. 22. Accordingly, my decision is to award the two sets of respondents the costs of the proceedings against the applicant to include reserved or discovery costs and those costs to be adjudicated in default of agreement. 11