Superior Court Rules

ORDER 97

ELECTION PETITIONS

1. In this Order–

‘the Act of 1937’ means the Seanad Electoral (University Members) Act, 1937 (No 30 of 1937);

‘the Act of 1947’ means the Seanad Electoral (Panel Members) Act, 1947 (No 42 of 1947);

‘the Act of 1992’ means the Electoral Act, 1992 (No 23 of 1992);

‘the Act of 1993’ means the Presidential Elections Act, 1993 (No 28 of 1993);

‘the Act of 1994’ means the Referendum Act, 1994 (No 12 of 1994);

‘the Act of 1997’ means the European Parliament Elections Act, 1997 (No 2 of 1997);

‘Dáil election petition’ means a petition to the High Court referred to in section 132 of the Act of 1992;

‘election petition’ means a Dáil election petition, a Seanad election petition, a Presidential election petition, a referendum petition or, as the case may be, a European Parliament election petition;

‘European Parliament election petition’ means a petition to the High Court referred to in section 21 of the Act of 1997;

‘Presidential election petition’ means a petition to the High Court referred to in section 57 of the Act of 1993;

‘Referendum petition’ means a petition to the High Court referred to in section 42 of the Act of 1994;

‘Seanad election petition’ means a petition to the High Court referred to in section 132 of the Act of 1992 as applied to Seanad general elections by section 54(1) of the Act of 1947 or to elections for Oireachtas sub-panel casual vacancies by section 75(1) of the Act of 1947 or to elections in university constituencies by section 26(1) of the Act of 1937.

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Rota

2. The President of the High Court shall each year nominate out of the Judges of the High Court three Judges to be placed on the rota for the trial of election petitions.

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Application for leave to present petition

3. (1) 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.

(2) 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 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.

(3) Where the court grants leave, it may if it considers it appropriate, make an order or orders:

(i) reducing the amount required to be lodged by the petitioner as security,

(ii) as to the suitability of proposed sureties,

(iii) giving directions as to the further service of the petition, or

(iv) giving such other directions as seem appropriate.

(4) The court hearing an application for leave may adjourn the application and direct that notice of the adjourned application be given to such party or parties as to the court seem appropriate.

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Presentation and contents of petition and motion for directions

4. (1) An election petition, which shall be in the Form No 1 in Appendix V shall–

(a) state briefly the holding and result of the relevant election or referendum and state briefly the material facts and grounds relied on in support of the prayer for the remedy or relief specified as sought;

(b) provide the petitioner’s address for service at which notices and proceedings may be served on him;

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(2) The court may order the delivery by the petitioner of such further particulars as may be necessary to prevent surprise and unnecessary expense and to ensure a fair and effectual trial, upon such terms as to costs and otherwise as may be directed.

(3) An election petition shall be presented by being lodged in the Central Office within the time prescribed together with the prescribed security or security in a lesser sum (and, where relevant, in such form or of such sureties) specified in an order of the court.

(4) The officer accepting the petition for presentation shall (if required) give a receipt therefor in the Form No 2 in Appendix V.

(5) If any election petition, leave for the presentation of which has been granted, is not presented and accepted within the time prescribed, the order granting leave shall lapse.

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5. As soon as may be after the acceptance for presentation of an election petition, the petitioner shall issue a notice of motion for directions, returnable before one of the Judges on the rota for the trial of election petitions, seeking the directions of the court as to the further conduct of the proceedings. Such notice of motion may also seek any interlocutory relief. Such notice of motion for directions (together with a copy of any affidavit filed in support of same) shall be served upon the persons to whom a copy of the petition is required to be given.

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6. The petitioner shall, as soon as practicable, lodge in the Central Office an affidavit or affidavits as to the time and manner of the giving of a copy of the election petition to the persons prescribed to be given a copy of same and as to any further service of same directed in any order of the court.

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Notice by respondent or notice party

7. (1) Any person to whose election a Dáil election petition, a Seanad election petition or a European Parliament election petition relates or, as the case may be, any person who was a candidate at the election to which a Presidential election petition relates (hereinafter referred to as a ‘respondent’) and any other person to whom the petitioner is required or has been directed to give a copy of the petition (hereinafter referred to as a ‘notice party’) may, within eight days after the giving to him of such copy of the petition send to or leave at the Central Office notice in the Form No 3, Appendix V of his intention to appear on the hearing of the petition. Such notice shall state whether that respondent or notice party intends or does not intend to oppose the petition. A copy of such notice shall be served on, or sent by post to, the petitioner or his solicitor at the address for service given in the petition. The notice shall contain an address for service of the respondent or notice party and shall be signed by him, or by his solicitor.

(2) A respondent or notice party may, with the consent of the petitioner, deliver notice of intention to appear outside the time prescribed in sub-rule 1.

(3) The court may, on application by a respondent or notice party made by motion on notice to the petitioner, enlarge the time for delivery of notice of intention to appear, on such terms as appear just.

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Records to be maintained

8. (1) There shall be maintained in the Central Office and under the control of the proper officer a book (or record in other approved form) entitled the ‘Election Petitions Cause Book’ into which shall be inserted particulars of:

(a) every order giving leave to present an election petition;

(b) every election petition accepted for presentation, including the name of each petitioner and address provided for service;

(c) the nature and amount of security provided by every petitioner;

(d) every motion for directions issued pursuant to this Order;

(e) every notice of intention to appear filed in relation to each election petition;

(f) any notice of trial in relation to any election petition (including the date fixed for such trial); and

(g) any transfer by the court of carriage of any referendum petition.

(2) Such book or record shall be open to inspection by any person during office hours.

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Hearing of motion for directions

9. (1) On the hearing of the motion for directions, the court may give such directions as to the further conduct of the proceedings as seem appropriate, and may adjourn the motion from time to time. Without prejudice to the generality of the foregoing, such directions may include directions as to the time for delivery of any pleadings; directions that the proceedings shall continue without formal pleadings and by means of a statement of issues of law or fact, or of both law and fact; or directions as to the service of any notice or as to the bringing of any further applications, including any application for an order referred to in:

(i) section 130(1) of the Act of 1992;

(ii) section 55(1) of the Act of 1993;

(iii) section 39(1) of the Act of 1994;

(iv) section 20(1) of the Act of 1997; or

(v) section 130(1) of the Act of 1992 as applied by section 26(1) of the Act of 1937 or as applied by section 54(1) or section 75(1) of the Act of 1947.

(2) The time and place of the trial of any election petition shall be fixed by the court at the hearing, or at any adjourned hearing, of the motion for directions. When fixing the time and place of the trial, the court may, on the application of any party or of its own motion make an order or orders:

(a) for the production by the relevant officer (to be delivered to the Central Office on or before the day fixed for the trial) of any document in his possession relating to the election or referendum in question (which order or orders may contain directions relating to the custody and return of such documents), or

(b) allowing the inspection, subject to such conditions as the court may impose, of documents referred to in–

(i) section 130(1) of the Act of 1992;

(ii) section 55(1) of the Act of 1993;

(iii) section 39(1) of the Act of 1994;

(iv) section 20(1) of the Act of 1997; or

(v) section 130(1) of the Act of 1992 as applied by section 26(1) of the Act of 1937 or as applied by section 54(1) or section 75(1) of the Act of 1947.

(3) In this rule, the ‘relevant officer’ means:

(a) in the case of a Dáil election petition, the Clerk of the Dáil; or

(b) in the case of a Seanad election petition, the Clerk of the Seanad; or

(c) in the case of a Presidential election petition, the presidential returning officer; or

(d) in the case of a referendum petition, the referendum returning officer; or

(e) in the case of a European Parliament election petition, the Chief Returning Officer.

(4) The proper officer (or such other person as may be directed by the court to give such notice) shall at least 15 days before the day appointed for the trial give notice thereof in the Form No 4 in Appendix V by post to:

(a) each respondent who has entered notice of intention to appear,

(b) each notice party who has entered notice of intention to appear,

(c) the Minister for Finance,

(d) the relevant officer, and

(e) the petitioner, and shall file a copy of such notice in the Central Office.

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Security

10. A deposit of money by way of security for costs which may become payable by a petitioner, lodged in the Central Office with any election petition may, without an order of the court, be remitted to the Accountant to be lodged to the credit of an account entitled ‘The Election Petition Security Fund’. The Accountant shall cause a receipt for such deposit to be transmitted to the Central Office.

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11. (1) A recognisance by way of security for costs which may become payable by a petitioner, lodged in the Central Office with any election petition may be acknowledged before the Master, a Judge of the District Court or a peace commissioner. Where there is more than one surety, there may be one recognisance acknowledged by all the sureties, or separate recognisances by one or more as may be convenient.

(2) Such recognisance shall contain the name and usual place of residence of each surety, with such sufficient description as shall enable him to be found or ascertained and shall be in the Form No 5 in Appendix V.

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12. All claims against money deposited in court or other security provided by the petitioner shall be dealt with by the court. Money so deposited shall, if and when the same is no longer needed for securing payment of such costs, be returnable or otherwise disposed of as the court may order. The court may, upon its determination on the costs of the petition, without application in that regard, make such orders or directions as seem appropriate as to the payment of costs out of or by means of the security provided, or make such other orders or give such directions as to the application, enforcement or release of the security as seem appropriate.

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Application for leave to withdraw petition

13. An application for leave to withdraw an election petition shall be by notice of motion in the Form No 6 in Appendix V and, in addition to such publication of notice of intention so to apply as is required, which shall be in the Form No 7 in Appendix V, copy of such notice of motion together with copy of the affidavit (where required) shall be served upon each respondent and upon each notice party who has given notice of intention to appear.

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Substitution of petitioner(s)

14. (1) Any person proposing to apply to be substituted as a petitioner on an application by the petitioner to withdraw an election petition shall, within five days after notice of the petitioner’s intention to apply for leave to withdraw is published, leave at the Central Office a notice in writing, signed by him or by his solicitor or agent on his behalf, of his intention so to apply to the court at the hearing of the application for leave to withdraw. Copy of such notice shall be served upon each respondent and each notice party who has given notice of intention to appear.

(2) Any person proposing to apply to be substituted as a petitioner on the abatement of an election petition shall, within five days after the abatement of the petition, leave at the Central Office a notice in writing, signed by him or on his behalf, of his intention so to apply to the court, on a date and at a time specified in such notice. A copy of such notice shall be served upon each respondent and each notice party who has given notice of intention to appear.

(3) The Director of Public Prosecutions may apply ex parte to the court for an order under section 51(1)(a) of the Act of 1994 transferring the carriage of the referendum petition to him. An application by the Director of Public Prosecutions under section 51(1)(b) of the Act of 1994 shall be by motion on notice to the petitioner. Where the court transfers carriage of a referendum petition to the Director of Public Prosecutions under section 51(1)(a) or section 51(1)(b) of the Act of 1994, the Registrar shall notify the Central Office in writing of the fact and the date of such transfer, and particulars of same shall be entered in the Election Petitions Cause Book.

(4) On the hearing of any application to withdraw a petition (and of any application for substitution as a petitioner), the court may give such directions as to the further conduct of the proceedings as seem appropriate.

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Trial and evidence

15. The court may postpone the beginning of the trial of an election petition. Notice of such postponement shall be given and published in the like manner in which notice of trial is given and published.

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16. In the event of the Judge not having arrived at the time appointed for the trial of an election petition, or at the time to which such trial is postponed, the commencement of the trial shall ipso facto stand adjourned to the ensuing day, and so from day to day.

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17. No formal adjournment of the court for the trial of an election petition shall be necessary, but the trial shall be deemed adjourned, and may be continued, from day to day until the inquiry is concluded. In the event of the Judge who begins the trial of an election petition being disabled by illness or otherwise, it may be recommenced and concluded by another Judge.

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18. The witnesses at the trial of an election petition shall be examined viva voce, unless otherwise ordered, and accordingly the provisions of Order 39 shall apply.

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Case stated

19. An application to the court to state a case for the opinion of the Supreme Court shall be made to the court by motion on notice.

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Costs

20. (1) All costs of and incidental to an election petition may be adjudicated by the Legal Costs Adjudicator.

(2) The costs of publication of notice of an election petition and of publication of any other notice required to be published in connection with an election petition shall be paid by the petitioner or person moving in the matter, and shall form part of the general costs of the election petition.

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Final order

21. (1) The Registrar shall cause a copy of the court’s order determining an election petition to be given forthwith upon the passing and perfection of such order to:

(a) each of the persons specified in rule 12(1) of the Third Schedule to the Act of 1992, in the case of such an order made on a Dáil election petition;

(b) each of the persons specified in rule 12(1) of the Third Schedule to the Act of 1992, (save that the Chairman of the Seanad shall be substituted for the Chairman of the Dáil) in the case of such an order made on a Seanad election petition;

(c) the referendum returning officer in the case of such an order made on a Referendum petition;

(d) each of the persons specified in rule 139(1) of the Second Schedule to the 1997 Act, in the case of such an order made on a European Parliament election petition;

(e) each of the persons specified in section 57(12) of the Act of 1993, in the case of such an order made on a Presidential election petition.

(2) The Judge of trial (or if such Judge so directs, the Registrar) shall cause to be made any amendment to, or any endorsement of any statement on, any provisional referendum certificate required by section 57(3) or section 57(4) of the Act of 1994. The Registrar shall transmit any provisional referendum certificate duly endorsed in accordance with section 57 of the Act of 1994 to the referendum returning officer forthwith upon the completion of such endorsement. Application for inspection or production of ballot papers otherwise than for the purpose of an election petition.

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22. Where it is proposed to apply for an order referred to in:

(i) section 130(1) of the Act of 1992;

(ii) section 55(1) of the Act of 1993;

(iii) section 39(1) of the Act of 1994;

(iv) section 20(1) of the Act of 1997; or

(v) section 130(1) of the Act of 1992 as applied by section 26(1) of the Act of 1937 or as applied by section 54(1) or section 75(1) of the Act of 1947,

and it is not alleged that the inspection or production of such documents is required for the purpose of an election petition, such application shall be made by motion ex parte, grounded on an affidavit showing the right of the applicant to apply and setting out the facts relied on in support of such application.

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Appeal against ruling on nominations in Presidential election

23. (1) An appeal under section 24(2) of the Act of 1993 against a ruling or declaration shall be brought by originating notice of motion issued out of the Central Office entitled ‘In the matter of section 24 of the Presidential Elections Act, 1993 and in the matter of an appeal’. Such motion shall be grounded upon the statement of objections referred to in section 24(3) of the Act of 1993 and upon an affidavit sworn by or on behalf of the appellant verifying the contents of such statement. The originating notice of motion shall be served upon the Presidential returning officer together with copies of the statement of objections and verifying affidavit. The appellant may at any time apply ex parte to one of the Judges on the rota for the trial of election petitions for an order abridging the time for such service.

(2) rules 10 to 12 inclusive of this Order shall apply, mutatis mutandis, to any money or other security required to be lodged by way of security for the costs of such appeal.

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