APPROVED                                                             [2025] IEHC 137

 

 

 

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The High Court

 

2025 42 IA

 

 

 

IN THE MATTER OF AN APPLICATION FOR LEAVE TO PRESENT AN ELECTION PETITION

 

AND IN THE MATTER OF THE ELECTORAL ACT 1992 (AS AMENDED)

 

 

 

BETWEEN:

 

 

MICHELLE KEANE

 

PROPOSING PETITIONER

 

 

AND

 

 

CLERK OF THE DÁIL

GOVERNMENT OF IRELAND

THE RETURNING OFFICER FOR KERRY (PADRAIG BURKE)

 

 

PROPOSED RESPONDENTS

 

 

 

JUDGMENT of Mr. Justice Garrett Simons delivered on 11 March 2025

 

 

Introduction

1.             This judgment is delivered in respect of an application for leave to present an election petition.  The applicant seeks to challenge the result of the general election in respect of the Kerry constituency.  The general election had been held on 29 November 2024 and the result for the relevant constituency had been declared on the weekend of 30 November 2024.  The application for leave was not moved until 7 March 2025.  The application is, therefore, out of time having regard to the fourteen day time-limit prescribed under the Electoral Act 1992 (as amended).  Accordingly, leave to present the election petition must be refused.

 

 

Legislative framework

2.             Section 132 of the Electoral Act 1992 provides, insofar as relevant, as follows:

"(1)        A Dáil election may, and may only, be questioned by a petition to the High Court.

 

(2)        The provisions of the Third Schedule shall have effect as regards a petition.

 

[...]

 

(4)        A petition may be presented by any person who is registered or entitled to be registered as a Dáil elector in the constituency but may only be presented within a period specified in Rule 3 of the Third Schedule."

 

3.             Section 132 further provides that a Dáil election may be questioned on the grounds of want of eligibility, the commission of an electoral offence, the obstruction of or interference with or other hindrance to the conduct of the election or mistake, or other irregularity which is likely to have affected the result of the election.

4.             Rule 3 of the Third Schedule of the Electoral Act 1992 (as amended by the Electoral Act 1997) provides, in relevant part, as follows:

"Presentation of petition

 

(1)        Subject to paragraph (3), a petition shall not be presented to the High Court unless that court, on application made to it in that behalf by or on behalf of the person proposing to present it not later than fourteen days after the result of the Dáil election is declared by the returning officer, by order grants leave to the person to do so.

 

(2)        The High Court shall not grant leave under paragraph (1) to present a petition unless it is satisfied—

 

(a)        that there is prima facie evidence of a matter referred to in section 132 in relation to which the petition questions the election result concerned, and

 

(b)        that the said matter is such as to affect materially the result of the election.

 

(2A)     A petition shall be presented by being lodged in the Central Office of the High Court not later than three days after the grant of leave by the High Court under paragraph (1).

 

(3)        Where a petition alleges bribery and specifically alleges a payment or other consideration to have been made or to have passed after the result of the Dáil election was declared by the returning officer, notwithstanding the fact that another petition relating to the same election may have been previously presented or tried, leave of the High Court to present a petition under paragraph (1) may be applied for not later than fourteen days next after the day on which the said payment or consideration is alleged to have been made or to have passed.

 

(3A)     Where a petition alleges an irregularity or noncompliance with any provision of Part V of the Electoral Act, 1997 whether before or after the result of the Dáil election was declared by the returning officer, notwithstanding the fact that another petition relating to the same election may have been previously presented or tried, leave of the High Court to present a petition under paragraph (1) may be applied for not later than fourteen days next after the laying of a copy of a statement of election expenses before each House of the Oireachtas in accordance with section 37 of the Electoral Act, 1997.

 

(4)        Where a petition has been lodged with the court, as soon as may be the petitioner shall give a copy of the petition—

 

(a)        to any person to whose election the petition relates,

 

(b)        to the Minister,

 

(c)        to the Clerk of the Dáil,

 

(d)        to the returning officer for the constituency to which the petition relates, and

 

(e)        except in the case of a petition presented by the Director of Public Prosecutions, to the Director of Public Prosecutions."

 

5.             Order 97, rule 3 of the Rules of the Superior Courts provides that an application for leave to present an election petition shall be made by motion ex parte to one of the judges on the rota for the trial of election petitions, or, in the absence of all such judges, to any judge of the High Court.  Such application shall be grounded upon an ex parte docket entitled in the matter of the relevant election or referendum and in the matter of an intended petition.  Such application shall be verified by an affidavit or affidavits sworn by or on behalf of the proposing petitioner or each of the proposing petitioners which shall exhibit a draft of the petition in the form in which it is proposed to be presented and which shall demonstrate the right of each proposing petitioner to petition.

 

 

Procedural history

6.             A general election to Dáil Éireann was held on 29 November 2024.  The proposing petitioner ("the applicant") seeks to challenge the result of the election in respect of the constituency of Kerry.  The result of the election for that constituency had been declared on the weekend of 30 November 2024.  The applicant had been one of the unsuccessful candidates in that constituency.

7.             The applicant attended in person at the Central Office of the High Court on 6 March 2025 to file papers for an application for leave to issue an election petition ("application for leave").  For administrative purposes, an application for leave is entered as an intended action and allocated a record number appropriate to same.  In the event that leave were to be granted, the election petition would then be presented by being lodged in the Central Office by the petitioner.  These fresh proceedings would be entered into the Election Petitions Cause Book and allocated their own record number.

8.             The application for leave was assigned to me for hearing as one of the judges previously nominated by the President of the High Court to the rota for the trial of election petitions.  The application for leave was fixed for hearing the next day (7 March 2025).  The applicant appeared as a litigant in person.

9.             The applicant had filed an ex parte docket and a grounding affidavit in the Central Office.  In breach of the requirements of Order 97, the applicant had omitted to exhibit, as part of her affidavit, a draft of the intended election petition ("draft election petition").  The applicant was permitted to submit the draft election petition in court and this draft has since been placed on the court file in the Central Office.

10.         The principal relief sought in the draft election petition is as follows:

"Your petitioner therefore pray (sic) for the following remedy:

 

(A)       that it may be determined that the said Michael Healy Rae, Danny Healy Rae, Pa Daly, Norma Foley, Michael Cahill was not duly elected or returned, and that the election was void

 

[...]".

 

11.         The applicant then seeks a number of ancillary reliefs.  These include, inter alia, orders directing that certain documents relating to the election in the constituency of Kerry be disclosed. 

12.         The principal allegation made in the draft election petition is that, on the evening of the poll, a named presiding officer tore out or detached ballot papers from the book of ballot papers in advance of the identification of individual electors.  This alleged conduct is also characterised elsewhere in the petition as the tearing out of ballot papers from the "ballot box" but this is, perhaps, a typographical error and might have been intended to read as "ballot books".  Irrespective of the precise nature of the alleged misconduct, it is something which, on the applicant's own version of events, had been witnessed by her personally on the evening of the poll.  Indeed, the applicant asserts that she immediately made a formal complaint to An Garda Síochána and to the Returning Officer.  The alleged misconduct is, therefore, something which had been known to the applicant even before the fourteen day time-limit began to run under the Electoral Act 1992.

13.         It is also alleged, in the draft election petition, that there were "discrepancies along with errors and omissions" in relation to the number of votes cast for the applicant in certain polling stations.  It is alleged that people who voted for the applicant have contacted her and that their votes are not "reflected in the State Count".

 

 

Petition is time barred

14.         An application for leave to present an election petition may only be made within the period specified in Rule 3 of the Third Schedule of the Electoral Act 1992.  Therefore, the default position is that an application for leave to present an election petition must be made within the fourteen days next after the result of the Dáil election is declared by the returning officer.  The applicant has failed to comply with this time-limit.  The result of the Dáil election in respect of the constituency of Kerry had been declared on the weekend of 30 November 2024.  The application for leave was not moved until 7 March 2025, that is, some two to three months after the time-limit had expired.  The proceedings are, therefore, time barred. 

15.         The High Court is not empowered under statute to extend the time-limit.  Even if it were, there is nothing in the papers before the court which might justify an extension of time in this case.  It is apparent from the terms of the draft election petition, and the grounding affidavit, that the principal cause of complaint had been known to the applicant since the evening of the poll (29 November 2024).  This is not a case where it is alleged that there had been concealed fraud which only came to the attention of a proposing petitioner subsequent to the expiration of the fourteen day time-limit.

16.         For completeness, it should be recorded that provision is made, under Rule 3(3) of the Third Schedule of the Act, for an extended time period in certain circumstances as follows.  Where a petition alleges bribery and specifically alleges a payment or other consideration to have been made or to have passed after the result of the Dáil election was declared by the returning officer, the application for leave may be made within the fourteen days next after the day on which the said payment or consideration is alleged to have been made or to have passed.  This provision is not engaged in the present case because no such allegation is made in the draft election petition.  Similarly, the extended period under Rule 3(3A) is not engaged in that there is no allegation made in relation to election expenses.

 

 

Request for disclosure of documents

17.         Section 130 of the Electoral Act 1992 provides that inspection of certain categories of document relating to an election shall not be allowed except under an order of the High Court.  For ease of exposition, these categories will be referred to in this judgment by the shorthand "sealed documents". 

18.         The applicant had sought, in her ex parte docket, orders directing the disclosure, pursuant to section 130 of the Electoral Act 1992, of certain sealed documents.  More specifically, it appears from her affidavit that the applicant seeks, inter alia, the disclosure of (a) the counted ballot papers, (b) the ballot papers rejected at the counting of the votes, (c) the unused and spoilt ballot papers, and (d) the counterfoils of the ballot papers issued at the polling stations in the constituency of Kerry.  Returning officers are required to forward these categories of documents to the Clerk of the Dáil.

19.         The applicant has also sought to agitate a discrete grievance in respect of access to the marked copies of the register of Dáil electors.  The term "marked copies" refers to the statutory requirement that a mark be placed in the relevant register against the number of the elector to denote that a ballot paper has been issued to that elector but without showing the number of the ballot paper so issued.  The applicant contends that she has been denied access to the marked copies of the register in respect of the constituency of Kerry.  The applicant further contends that this is in breach of the requirements of Section 131 of the Electoral Act 1992 which provides that certain documents shall be open to public inspection at such time and under such conditions as may be specified by the Clerk of the Dáil. 

20.         It is not permissible to pursue either of these requests for the disclosure of documents in the context of the application for leave.  An application for leave is merely the vehicle by which a proposing petitioner seeks permission to present an election petition; the application does not constitute a substantive proceeding as such.  Had leave been granted, then it would, in principle, have been open to the applicant qua petitioner to seek the disclosure of documents in the context of the election petition proceedings which would then issue. 

21.         Now that the application for leave has been determined, and leave refused, the matter before the court has come to a conclusion.  The request for the disclosure of documents cannot be pursued on a freestanding basis in the context of a defunct application.

22.         There is an additional reason as to why the request for access to sealed documents (as opposed to the marked copies of the register) would have to be refused.  Section 130(3) of the Electoral Act 1992 provides that an inspection order shall not be made unless the court is satisfied that the inspection or production of such sealed documents is required for the purposes of instituting or maintaining a prosecution for an offence under the Act or for the purpose of a petition.  In circumstances where the applicant is time barred from pursuing an election petition, there are no grounds upon which she can seek an order directing the disclosure of sealed documents.  The disclosure of the sealed documents is not required for the purpose of a petition at the suit of the applicant.

23.         If and insofar as the applicant wishes to pursue the discrete allegation that she has been refused access to marked copies of the register of Dáil electors, this is something which might, in principle, be addressed in separate judicial review proceedings.  However, it is not something which can be resolved in the present proceedings which have come to a conclusion with the refusal of leave to present the draft election petition.

 

 

Conclusion and form of order

24.         Leave to present the intended election petition is refused.  The time-limit prescribed, under Rule 3 of the Third Schedule, for the purposes of Section 132 of the Electoral Act 1992 had long since expired prior to the application for leave.  The petition is therefore time barred.

25.         The related request for the disclosure of documents is refused for the reasons explained at paragraphs 17 to 23 above. 

26.         As to legal costs, there will be no order.  The applicant has been entirely unsuccessful in the proceedings and same did not resolve any point of law of general public importance which might otherwise have justified an order allowing her to recover her expenses and outlay.  The proposed respondents can have incurred no recoverable legal costs in circumstances where the application for leave was heard ex parte.