Kerry County Council faces large legal bill over election appeal

Kerry Co Council is facing a six figure bill after being ordered by the Supreme Court to pay the costs of former Fianna Fáil senator Dan Kiely's successful appeal for a total recount of votes in the 2014 local elections for the Listowel electoral area.

That recount is to be held on February 10th, the Supreme Court heard. Mr Kiely lost out on a seat for the Listowel district by just two votes to Fine Gael's Mike Kennelly.

The delay holding the recount since it was ordered last December by a 4/1 Supreme Court majority related to difficulties in finding a suitable venue, Michael McDowell SC, for Mr Kiely, said.

In that majority judgment affecting the conduct of future elections, the Supreme Court found there was an unlawful “mistake” in the conduct of the Listowel local electoral area because votes were included with a sequence of numbers that did not start with the number 1.

The court directed a full recount from the beginning in which the validity of all ballots must be re-examined and those  containing a sequence of numbers not beginning with ‘1’ must be excluded.

The core issue in the case was whether a 3-4-5 marked on a ballot paper, in the absence of any marking of a number ‘1’ preference, could be deemed a valid vote. The issue arose because, on days when there is more than one election, many people cast their first and second preference on one ballot paper and put their third, fourth and fifth preferences on the other.

The Listowel area local election was held on the same day as elections for the European Parliament and the deputy returning officer included ballot papers containing a sequence of numbers not starting with '1' in the count.

The Supreme Court heard a Memorandum of Guidance for Local Authority Returning Officers states returning officers are entitled, on multiple election days, to accept as valid and admit to the count ballot papers containing the series of numbers 3,4,5, etc even when the instructions on the ballot paper say write the number one beside the candidate of your first choice.

The Minister for the Environment was not joined as a respondent to the case but made submissions at appeal stage opposing Mr Kiely’s claim.

When the case returned before the Supreme Court on Wednesday to address costs issues, counsel for the Minister said his client would pay his own costs in the Supreme Court but opposed any costs orders being made against him.

Mr Justice Peter Charleton, who had dissented from the majority decision ordering a recount, remarked he was "puzzled" by the Minister's position when the Department of the Environment "says what should be done by returning officers in elections".

The council did not seek costs against the Minister and did not oppose Mr Kiely’s application for his costs in the Supreme Court but argued he was not entitled to have the Council meet his costs in the Circuit Court.

The court ruled the council should pay the costs of Mr Kiely’s Supreme Court appeal but made no order for costs of his proceedings in the Circuit Court, meaning the sides pay their own costs there.

It refused to grant costs sought by lawyers for Cllr Mike Kennelly but ruled Independent candidate Michael O’Gorman, who was unsuccessful in the 2014 election and supported Mr Kiely’s petition, was entitled to his costs in the Supreme Court.