Feeney v Groves & Ors (Approved) [2025] IEHC 633 (22 October 2025)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] High Court of Ireland Decisions You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Feeney v Groves & Ors (Approved) [2025] IEHC 633 (22 October 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC633.html Cite as: [2025] IEHC 633 [ New search ] [ Printable PDF version ] [ Help ] THE HIGH COURT [2025] IEHC 633 [Record No. 2025/1PEP] BETWEEN ANGELA FEENEY PETITIONER AND MARTIN GROVES, NIALL BLANEY, VICTOR BOYHAN, PARAIC BRADY, MARIA BYRNE, JOANNE COLLINS, TERESA COSTELLO, PAUL DALY, EILEEN LYNCH, P. J. MURPHY, MALCOLM NOONAN AND SARAH O'REILLY RESPONDENTS AND THE DIRECTOR OF PUBLIC PROSECUTIONS, THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE, AND THE ATTORNEY GENERAL NOTICE PARTIES Approved Judgment delivered by Mr. Justice Micheál O'Higgins on 22 nd October 2025 Table of Contents Introduction . Background facts as set out in the petition . Preliminary objection to the transparency ground . Discussion of the respondents' preliminary objection . List of witnesses called . Statutory framework and themes from case law .. "Catch-22" difficulty and the petitioner's case for a recount Rule 14(2) of the Second Schedule to the 1947 Act Summary of the evidence of the petitioner Evidence relating to transparency and the request for a recount Layout of the room .. The first count The second count Subsequent counts . Complexity of the process . Justification for the layout of the room .. Narrow margins at Seanad elections . The count itself . Petitioner's request for a recount Expert evidence from political scientists . Interpretation of Rule 14 of the Second Schedule to the 1947 Act The court's determination of the correct interpretation of Rule 14(2) Conclusions on the petitioner's argument as to lack of transparency . Counting to take place "in the presence of" candidates . Conclusions on the refusal of a recount The petitioner's alternative argument - no reasonable returning officer would have refused a recount Decision on whether to order a recount for the purpose of the trial of the petition . Conclusion . Introduction 1. The petitioner, Angela Feeney, is a Labour Party County Councillor who stood for election to the Agricultural Panel of Seanad Éireann in January 2025. She lost out on obtaining a seat by one ninth of a ballot. She sought, but was refused, a full recount of the votes. In this election petition she is challenging the outcome of the election following the counting of votes which took place between the 31 st of January and the 1 st February 2025. 2. The petitioner advances two grounds of challenge: First, the refusal of the returning officer to conduct a full recount; and second, the alleged failure of the returning officer to count the votes in a transparent manner. 3. In broad outline, the petitioner's case is that each of these grounds, individually and cumulatively, constitutes a "mistake or other irregularity which is likely to have affected the result of the election" within the meaning of s. 132(5) of the Electoral Act 1992 (as amended) (the "1992 Act"). The petitioner contends that the failure of the returning officer to carry out a recount both aggravated, and was aggravated by, his failure to count the votes in a transparent manner. 4. The gist of the petitioner's case on the first ground is that, considering the extremely narrow margin between the votes counted in her favour, and those in favour of Maria Byrne, and in light of the decisiveness of that round of voting, the returning officer's refusal of the recount was wholly unreasonable and meant that the election was conducted otherwise than in accordance with the principles laid down in the Seanad Electoral (Panel Members) Act 1947 ("the 1947 Act"), and contravenes s. 132 of the 1992 Act. The intervention of the court is sought not to overturn disputed votes, but merely to obtain a recount of votes to ensure the correct result has been obtained. Background facts as set out in the petition 5. On 14 th February 2025, on foot of an ex parte application made to me as one of the election judges nominated by the President of the High Court, I granted the petitioner leave to present the petition. The relevant background facts are set out within the petition which was filed in the Central Office on the 17 th February 2025. 6. At the conclusion of the counting process, the returning officer (the first respondent) deemed the following eleven candidates to be elected (these are named as the second to twelfth named respondents): Niall Blaney, Victor Boyhan, Paraic Brady, Maria Byrne, Joanne Collins, Teresa Costello, Paul Daly, Eileen Lynch, P. J. Murphy, Malcolm Noonan and Sarah O'Reilly. 7. Following the conclusion of the twenty-third count, the petitioner, as the continuing candidate with the lowest number of votes, was excluded. The margin between the petitioner and the next candidate (Maria Byrne) was 116 votes, roughly one ninth of a ballot. For context, pursuant to the relevant rules for Seanad elections, each valid ballot paper is deemed to have a value of 1000 votes. The petitioner contends that no candidate has missed out on obtaining the final seat in a Seanad election by such a small margin since at least 1987. 8. The petitioner requested the returning officer to carry out a full recount of all ballot papers cast in the Agricultural Panel election. Having considered the petitioner's request, the returning officer declined to carry out a full recount of the votes. The returning officer did however carry out a recount of the twenty-third count as he was obliged to do so pursuant to Rule 14(1) of the Second Schedule to the 1947 Act. The recount of the twenty-third count did not alter the outcome of that count. 9. The petitioner objected to the returning officer's decision to refuse the recount in writing, a prerequisite for the bringing of an election petition under section 53(2) of the 1947 Act. 10. The petitioner contends that, in light of the number of candidates involved, the number of counts, the decisive stage at which she was excluded, the fact that the votes were counted by hand and the fact that the Agricultural Panel was one of five panels to be filled at the election, it was irrational, unreasonable, unfair, unlawful and/or otherwise than in accordance with the principles laid down in the 1947 Act for the returning officer to decline to conduct a full recount. 11. Turning to the petitioner's second ground of challenge, the suggested failure of the returning officer to count the votes in a transparent manner, the petitioner invokes Rules 11 to 13 of the First Schedule to the 1947 Act. Rule 11 deals with the notice to be given as to the counting of votes, Rule 12 deals with the opening of the Seanad ballot box and Rule 13 provides as follows: "Persons present at counting of votes. 13. The Seanad returning officer and his assistants, any candidate and any agent appointed by a candidate, and no other person, except with the permission of the Seanad returning officer, may be present at the opening of the Seanad ballot box or the counting of the votes ." (emphasis added) 12. The petitioner contends that each candidate has a right to be present at the counting of the votes. Furthermore, s. 53(1) of the 1947 Act provides that the: "... returning officer shall, in the presence of such candidates as may be in attendance, ascertain separately, in accordance with this Act and, in particular, the rules contained in the First and Second Schedules to this Act, the result of a Seanad general election..." (emphasis added) 13. The petitioner says the first count was carried out in the view of persons who were admitted to the count centre and in the presence of the candidates and their agents, but that none of the subsequent counts (save for the recount of the twenty-third count) were carried out in the presence of the candidates or agents. Therefore, says the petitioner, Rule 13 of the First Schedule to the 1947 Act was not complied with and the counting of votes was not carried out with the degree of accountability or transparency required under the 1947 Act. 14. The petitioner contends that, although candidates and their agents were in the room when the counting took place, it took place at a table too far away to allow for any oversight to be possible. This increased the possibility of human error on the part of those counting the votes and reduced the oversight of counting by those lawfully present. The petitioner considers that the counting of votes should be as transparent as is consistent with fairness as it assists in the validity of the count and the legitimacy of the outcome. Preliminary objection to the transparency ground 15. Before I address the evidence in the case, I should firstly mention a preliminary objection raised by the respondents regarding the transparency ground. Section 53(2) of the 1947 Act provides: " The decision of the Seanad returning officer as to any question arising at a Seanad general election on the ballot papers, the envelopes containing the ballot papers, the declarations of identity or any other matter arising on the issue or the receipt of the ballot papers or on the counting of the votes shall be final, but subject, where an objection in writing to the decision has been delivered to the Seanad returning officer before the declaration of the result of the election, to review by a court trying an election petition in relation to the election. " (emphasis added) 16. The petitioner accepts that her transparency complaint was not detailed in the objection made in writing to the returning officer. The respondents make a jurisdictional objection to this ground of challenge and submit that it should follow, in accordance with s. 53(2) of the 1947 Act, that the decision of the returning officer on this matter is final and not subject to review by the court. 17. The respondents submit that the scheme of the 1947 Act, read in conjunction with the 1992 Act, is to restrict the potential for court challenges to elections in the interests of certainty as to their outcome. Section 132(1) of the 1992 Act provides that an election "may, and may only" be questioned by a petition to the High Court. Any other form of challenge is excluded. Section 53(2) of the 1947 Act emphasises the finality of the returning officer's decision "... as to any question arising at a Seanad general election ... on the counting of the votes". Discussion of the respondents' preliminary objection 18. This is not a case in which there has been an outright failure by the petitioner to deliver an objection in writing to the returning officer before the declaration of the result. The preliminary objection is narrower than that, and relates to the fact that the grounds sought to be advanced in the petition are broader than the grounds referenced in the written objection. That may be important in terms of the statutory objective because the returning officer has been notified, on time, of the intention to challenge the outcome and the necessary steps in terms of preserving the ballots have been taken. 19. Secondly, insofar as the respondents rely on s. 132(1) of the 1992 Act, it could be said that the mischief identified in that section - that elections cannot be questioned in general litigation and may only be questioned by an election petition to the High Court - is not engaged on the facts of this petition. The challenge here has been appropriately brought by way of an election petition and, as is mandatory, an objection in writing was delivered to the returning officer prior to the declaration of the result. 20. Thirdly, it is not difficult to think of hypothetical examples where applying the full rigours of the respondents' objection might give rise to undesirable consequences. For instance, were a candidate to lodge a written objection contesting a returning officer's decision to disallow five specific votes, but where further uncounted votes were discovered the next morning, it would be unsatisfactory if the missing votes could not be included in the challenge. Another example might be a situation where the second ground of challenge is very strong or possibly even unanswerable on its merits, and the candidate has a reasonable explanation for not including it in the written objection. 21. As against these points, in the present case, the petitioner accepts that her written objection made no mention of the transparency ground now sought to be advanced, and little explanation has been offered for its exclusion from the written objection. The petitioner however contends as a matter of law that there was no requirement to raise the issue under s. 53(2) and that the returning officer in his evidence indicated that he had no such expectation. 22. It seems to me the preliminary objection raised by the respondents is potentially an issue of some importance. It calls for an interpretation of s. 53(2) of the 1947 Act, and specifically, the meaning to be attributed to the word "decision" which appears in the last four lines of the section: "...where an objection in writing to the decision has been delivered to the Seanad returning officer" . In considering the section, a number of separate questions may be said to arise: Does "decision" bear the same meaning here as it does at the beginning of the section?; what do the words "as to any question arising at a Seanad general election" mean, and are they relevant to this preliminary objection?; did the Oireachtas intend that issues not raised or determined by the returning officer should be excluded from any subsequent election petition?; is the jurisdictional requirement for an election petition met by a candidate lodging an objection in writing, even if the written objection does not cover all grounds sought to be advanced?; and is there any guidance to be drawn from jurisprudence dealing with amendments to pleadings, whether in private law or judicial review? 23. In view of the potential importance of the issue, and the possibility that it may arise in future election cases, I am inclined to the view that the court should only determine the legal issue if it is necessary to do so. I am also mindful that this court has heard four days of evidence from a range of witnesses dealing with the transparency issue, including expert evidence, and legitimate issues of concern have been raised. The legal issue raised relates to the important question of whether a reasonable person can have confidence in, and trust, the outcome of the election under discussion. In light of the above factors, I propose to park the respondents' preliminary objection for the time being and will now consider the substance of the transparency complaint raised by the petitioner. I will start by considering the evidence. List of witnesses called 24. The case was heard over five days from Tuesday 15 th July to Monday the 21 st July 2025. Four legal teams appeared before the court, representing the petitioner, the returning officer, the Fine Gael candidates, and the Minister and the AG as notice parties. The other notice party, the Director of Public Prosecutions, indicated through counsel that she was not participating. The notice parties played no role in the evidence or cross-examination and confined their role to legal submissions. 25. The court heard evidence from the following witnesses over the first four days of the hearing: (1) The petitioner, Councillor Angela Feeney. (2) Joe Costello, former Dublin City Councillor, TD and Senator with the Labour Party. (3) Mark Wall, Labour Party TD for Kildare South and election agent for the petitioner. (4) Martin Groves, Clerk of Seanad Éireann and the returning officer in the election. He is joined as the first respondent. (5) Professor Eoin O'Malley, Associate Professor in Political Science attached to the School of Law and Government, Dublin City University. (6) Senator Maria Byrne, Leas-Chathaoirleach of Seanad Éireann. She is joined as the fifth respondent. (7) Terry Murphy, Head of Research and Development for the Fine Gael party of over 14 years. (8) Professor Theresa Reidy, Political Scientist attached to the Department of Government and Politics, University College Cork. Statutory framework and themes from case law 26. The test that I must apply in considering this petition is set out in s. 132(5) of the 1992 Act. Insofar as relevant, the section provides as follows: "A Dáil election may be questioned on the grounds of... mistake or other irregularity which is likely to have affected the result of the election." 27. It is clear from the language of the section and indeed the judgment of the Supreme Court in the leading case of Kiely v. Kerry County Council [2016] 2 I. R. 1 that an election petition must meet a dual requirement of demonstrating (a) a mistake or other irregularity and (b) that such mistake or irregularity "is likely to have affected the result of the election". 28. The petitioner in Kiely was a candidate in a local election held on the same day as elections to the European Parliament. The returning officer deemed valid certain disputed ballot papers that were marked with numerical sequences beginning with a number other than 1. This was in circumstances where, because there was more than one election on the same day, many voters had put 1-2-3 on one ballot, and put, for example, 4-5-6 on the other. The petitioner lost out on the final seat by two votes and issued an election civil bill in the Circuit Court challenging the result. His main ground of challenge was the decision by the returning officer to treat ballots bearing sequences other than 1-2-3 as indicating a first preference. The Circuit Court dismissed the petition and Mr. Kiely appealed to the Supreme Court under the applicable legislation. 29. The Supreme Court allowed the appeal by a '4 to 1' majority and remitted the matter back to the Circuit Court to order a counting afresh of all ballots. The majority held that a number other than 1 or "one" in a numerical sequence on a ballot paper was not a "mark which ... clearly indicates a first preference" for the purposes of the Local Elections (Petitions and Disqualifications) Act 1974 and the applicable regulations. 30. The Supreme Court noted that the petitioner bore the onus of proving, on the balance of probabilities, that the error of law identified was likely to have affected the result of the election. As the evidence gave rise to an inference that there was a realistic possibility that the result might have been different had the votes in question been excluded, the petitioner was adjudged to have met the applicable onus of proof. 31. O'Donnell J. (as he then was) held that, as the court found that there was a "mistake" arising from votes bearing a sequence that did not commence with the number 1, and given that the election result was so close, a reasonable person could be in doubt about, and no longer trust, the outcome of the election. 32. McKechnie J. (also for the majority) held that in order to satisfy the legislative requirement, the petitioner was required to identify consequences, referable to the result, that were not electorally inconsequential: if established, the same amounted to a sufficient compliance with the statutory test. Given the margin by which the petitioner lost the seat, and given the fact that within a system of proportional representation even a very small number of votes could have an accumulative effect on transfers and eliminations, there was sufficient evidence for concluding that the invalid votes could have had an effect on the result. "Catch-22" difficulty and the petitioner's case for a recount 33. An unusual feature of the present case is that neither complaint in the petition relates to a specific ballot paper or to a quantifiable number of votes. Parking for a moment the first requirement of demonstrating a mistake or irregularity, the petitioner may face something of a "catch-22" difficulty in meeting the second part of the statutory test because, without knowing or being able to prove what result a fresh count might bring, she must prove that the refusal of the recount "is likely to have affected the result of the election". The fact that the petition is not a challenge to specific ballots, unlike in Kiely and other cases, makes it difficult to isolate and measure the effect of the suggested error(s), if errors they be. 34. Addressing this difficulty, the petitioner submits that the court should avail of its power under Rule 7 of the Third Schedule to the 1992 Act (entitled "Counting of votes afresh") to order a recount for the purpose of the trial of this petition. Rule 7 insofar as it is relevant provides as follows: "(1) The court may, for the purposes of the trial of a petition questioning a Dáil election, if it thinks fit, order - (a) that all the votes cast at the election in the constituency to which the petition relates shall be counted afresh, or (b) that all the votes so cast and recorded on the ballot papers contained in a particular parcel shall be so counted, and where the court so orders, the provisions of the following paragraph shall have effect... (4) The court shall have power to reverse any decision of the returning officer at the original count." 35. The petitioner argues that the statutory provisions provide that, for the purpose of the hearing of the petition, and in order to dismiss the petition or declare the correct result, the High Court may direct a recount under Rule 7. She argues that the court's jurisdiction to grant a recount is wide, given that the court may order a recount. The petitioner submits that ordering a recount would involve an interlocutory step in the proceedings, as distinct from being a final order in itself. Further, she says that the court is not required to be satisfied that both limbs of the statutory test under s. 132(5) are proven in order to direct a recount. Were it otherwise, she says, even where a returning officer's refusal to order a recount was shown to be wholly unreasonable, the absence of a recount would render it impossible for the petitioner to demonstrate the effect of the proven irregularity, and the right of a candidate to bring an election petition based on such an illegality would risk being set at naught. 36. The respondents wholly disagree that the court should avail of the power to order a recount for the purposes of the trial of the petition. The first respondent submits that the power is intended to be used only if the court is satisfied that the petitioner has established the existence of a mistake or irregularity likely to have affected the outcome of the election. The power is not intended to be used as a form of discovery or evidence gathering, or as a means of obtaining a recount in the absence of a factual basis for supposing that there was an effect on the result. To allow a recount "for the asking" would ignore the second part of the test laid down by the Oireachtas in s. 132(5). 37. The notice parties agree with the returning officer in this regard and submit that the existence of a broad, stand-alone power to recount votes, untethered to the statutory test applicable in an election petition, is not supported by the text of the legislation. They state that the petitioner's interpretation would involve a significant intrusion into the electoral process, contrary to the separation of powers, and was not intended by the Oireachtas. 38. All parties rely on passages of Kiely to support their arguments as to whether the court should exercise its power to order a fresh recount for the purpose of the trial of the petition. It seems to me that I need not for the moment consider those passages because, in order for the recount question to become relevant, the petitioner must first succeed in establishing the existence of a mistake or irregularity. Accordingly, it will only then be necessary for the court to consider whether the failure to conduct a recount was "likely to have affected the result" . Before considering that core issue, I want to briefly mention some of the other important themes identified in the caselaw. 39. Jordan v. Minister for Children and Youth Affairs [2015] 4 I. R. 232 concerned a challenge to the outcome of the referendum on the Thirty-First Amendment of the Constitution (Children) Bill 2012. In that case, the Supreme Court noted the restraint to be exercised by the judiciary in considering whether to dislodge the sovereign and democratically expressed wishes of the people. O'Donnell J. explained that important principle as follows at para. 202: "When the question is the setting aside of a vote, whether at an election or referendum, then the issue involves a balance between two different constitutional values. A referendum did take place and the people participated. They voted for or against, or did not participate, but in each case, their decision was the exercise of their sovereign constitutional entitlement. In many cases the individuals may have been completely unaware of or disregarded the Government information campaign. If conscious of it at all, they may have acted in defiance of it or because of annoyance with it, but in each case a decision was made which it is for a citizen of Ireland alone to make. That has a very significant constitutional weight which must be put in the balance. A decision of the people, in the terms of Articles 46 and 47 was given. To set aside a referendum result simply because of a breach of the law, but particularly the regulations relating to provision of information, would be to demean the significance of the individual voter and the value of their individual vote, whether that vote was exercised or not." 40. It is important to remember that in a referendum challenge, the petitioner must meet a "materially affected" test, whereas the threshold applicable to the present petition is that the alleged mistake or irregularity "is likely to have affected the result of the election". O'Donnell J. held in Jordan that the "materially affected" test did not require that the conduct complained of necessarily altered the result of the referendum, even as a matter of probability (para. 230). He stated that an election will be upheld where it can be shown as a matter of certainty that it was not affected by the irregularity, but must be re-run "when there is a reasonable possibility that the outcome could have been different" (para. 232) . 41. O'Donnell J. stated at para. 235 that: "Where an irregularity has occurred which is an interference in the conduct of an election or referendum, then there will come a point at which it can be said that a reasonable person will no longer have the requisite confidence in the outcome to allow the result to be accepted as the basis upon which society should collectively proceed. In such circumstances it will be necessary to re-run the election or referendum notwithstanding the difficulties and imperfections of that course . " 42. O'Donnell J. framed the test for challenging a referendum in the following terms at para. 236: "Accordingly, I would hold that "material effect on the outcome of a referendum" involves establishing that it is reasonably possible that the irregularity or interference identified affected the result. Because of the inherent flexibility of this test, it may be useful to add that the object of this test is to identify the point at which it can be said that a reasonable person would be in doubt about, and no longer trust, the provisional outcome of the election or referendum." 43. In applying that test, Denham C. J. held at para. 123 that: "The test to be applied by a court is an objective test, an objective consideration of the facts, whether a reasonable person would have a reasonable apprehension that the matter raised by an applicant materially affected the result of a referendum as a whole, so that they could not trust the referendum result." 44. These observations are also relevant in the case of a Seanad or Dáil election petition, subject however to the important caveat that the threshold to be met in such challenges is lower in that the petitioner is not required to demonstrate that the irregularity materially affected the outcome of the election. Rule 14(2) of the Second Schedule to the 1947 Act 45. In relation to the 'refusal of the recount' aspect of the case, the court is required to interpret Rule 14(2) of the Second Schedule to the 1947 Act, which reads as follows: "14. (1) Any candidate or his agent may, at the conclusion of any count, request the Seanad returning officer to re-examine and recount all or any of the ballot papers dealt with during that count, and the Seanad returning officer shall forthwith re-examine and recount accordingly the ballot papers indicated. (2) The Seanad returning officer may at his discretion recount ballot papers either once or more often in any case in which he is not satisfied as to the accuracy of any count. (3) Nothing in this Rule shall make it obligatory on the Seanad returning officer to recount the same parcel of ballot papers more than once." 46. The parties agree that Rule 14(1) entitles a candidate, as of right, to a recount of ballot papers dealt with during the last preceding count. In the present case, the petitioner sought and was granted a recount of the twenty-third count, reflecting this entitlement. 47. The main area of dispute between the parties concerns the returning officer's decision under Rule 14(2), whereby he refused the petitioner's request for a "full" recount (while the Rule does not refer to a "full" recount, I am using that shorthand to indicate a recount of votes other than a recount of the ballot papers from the last preceding count). 48. Therefore, the central legal issue that I must decide in these proceedings is the correct interpretation to give to Rule 14(2). I will come back to that core issue presently. 49. Case law indicates that the courts have demonstrated a reluctance to overturn the result of an election without a compelling basis for doing so. In Dillon-Leetch v. Calleary (Unreported, Supreme Court, 31 st July 1974) Henchy J. stated as follows: "... the courts will not allow an electorally ineffective breach of that principle to be used to set aside the correctly exercised constitutional right of the rest of the citizens forming the electorate in the constituency to elect their representatives in Dáil Éireann: see Art. 16, s. 1, subs. 2, of the Constitutional [sic]." (emphasis added) 50. Finally, in Jordan, MacMenamin J. considered that the application of the civil standard of proof was not inconsistent with the necessity for "clear and cogent" evidence to be adduced on behalf of a petitioner in an election petition. 51. That concludes my brief outline of some of the themes discussed in the leading election petition cases. I will now turn to the evidence of the petitioner and set it in the context of the legal issues raised in the petition. Summary of the evidence of the petitioner 52. The petitioner came across as a balanced witness who gave her evidence in a straightforward and reasonable fashion. She articulated her concerns with clarity and outlined why she felt it was important to bring the petition. 53. She stated in her oral evidence (though not in her affidavits) that the first count was unsatisfactory because the counting was done too far away from candidates and that their view of the counting was blocked by staff who had their backs to them. She stated that this was also the case in subsequent counts, and that the position became worse in those later counts. The "inner table" where the counting took place was approximately seven feet away from the "outer table" where candidates were located. She said this table configuration did not lend itself to candidates having proper oversight of the counting process, and it was not the same oversight as one would have at a general or local election. 54. The petitioner contended that there should be the same level of transparency and oversight in the counting process for Seanad and Dáil elections to ensure that candidates could have confidence they had a fair opportunity of being elected. This required not only being present in the same room as the counting but having oversight of and input into the counting process. She accepted that the level of candidate input should not be invasive or slow down the process, and that it wasn't necessary to see every single ballot being counted. She also stated that it was not necessary for the calculations to be carried out at the outer table, given the high level of concentration required. However, she said counting should occur near enough to candidates to give them an unblocked view of the votes being counted. 55. The petitioner felt that the venue was unsuitable, too small and very cramped, and stated that she was challenging the issues of transparency and fairness in the counting process so that the public could have confidence in the electoral process. In her view, there was insufficient opportunity for candidates to scrutinise the counting of votes. 56. In cross-examination, the petitioner emphasised that she did not intend to impugn anyone's reputation, and she acknowledged the careful and meticulous work carried out by the returning officer and his staff. However, she stated that in circumstances where there are 28 candidates, 23 vote counts and many individuals working 15/16 hour shifts over a bank holiday weekend, there was great capacity for human error. 57. It was put to the petitioner that her averment that the counting was effectively done "in private" was incorrect. She accepted that the media were permitted to be present, individuals had access to the count centre, and that the counting was live streamed on Facebook, "X" and on the Oireachtas website, with results posted of every count. 58. The petitioner accepted that she did not at any stage identify any individual error, beyond the refusal of the recount. She stated this was because at that stage she did not know how fine the margin was going to be. When put to her that that it was incumbent on her in the circumstances to raise her concerns as to transparency and visibility of the counting at the time, she acknowledged that in hindsight she should have raised her concerns on site. 59. The petitioner accepted that the counting process in Seanad elections is very complex and that a great deal of care must be taken with respect to the intricate calculations involved. She also accepted that in Dáil and County Council elections the electorate is much bigger, and that the pace at which the Seanad count takes place is much slower - the counting of less than 2000 votes taking over two days. She accepted it was important that the returning officer should have full oversight of the counting and ensure that errors were not made. The petitioner accepted this in principle, but said it was also important for the candidates to have oversight of the process. 60. In summary, the petitioner contended that the democratic process requires that counting of the votes is done transparently in all elections, which includes an entitlement on the part of candidates and their agents to be present for, and view, the counting of votes. She contends that in the present case, candidates and agents had an inadequate line-of-sight toward the counting at the "inner table" and that the counting of votes was not capable of being directly scrutinised. Therefore, says the petitioner, a key requirement of Rule 13 of the First Schedule to the 1947 Act was breached. Evidence relating to transparency and the request for a recount 61. Turning to the evidence on the two grounds of challenge, there was a large measure of agreement amongst witnesses about the counting process, the diligent work carried out by counting staff and the circumstances surrounding the petitioner's request for a recount. Based on the evidence and affidavits provided to the court, I find the following facts. 62. The count was held in the Members' Restaurant of Leinster House in Dublin. This venue had been used for every other Seanad election count since 1993, except for the 2020 election count which was held in Dublin Castle to facilitate social distancing during the COVID-19 pandemic. 63. In the preparatory stages before the count, the returning officer considered various other venues for the count with the aim of providing more circulation space for count staff, more desk space for the returning officer and the calculations team, and also to facilitate attendance by a greater number of people such as the family and friends of candidates. 64. Joe Costello gave evidence supporting the petitioner's position that the venue was unsuitable and very cramped. He had a discussion in January before the election with the returning officer, wherein he suggested that Dublin Castle would be an ideal venue. Mr. Costello accepts that he did not tell Mr. Groves that the Members' Restaurant was inappropriate. Ultimately, the returning officer made the decision to again hold the count in Leinster House in the Members' Restaurant. No candidate objected to this decision. Layout of the room 65. Mr. Groves' affidavits contain a helpful description of the layout of the count centre. The room was set up with an "outer table" for the candidates, an "inner table" and a separate "calculations table". The outer table was laid out with nameplates for candidates and operated as a repository for votes throughout the entirety of the count. 66. The inner table consisted of eight tables and was located approx. 8 to 10 feet from the edge of the outer table. 67. The calculation process is managed by the calculations team at the calculations table. The calculations team records on a tracking sheet the source and value of each sub-parcel of an excluded candidate and assigns a new reference to each of them for onward distribution. 68. Throughout the process, the calculations team need to monitor carefully whether any candidate is close to attaining the quota. This is because, if in the distribution of a sub parcel a candidate exceeds the quota, he or she is deemed elected, is no longer a continuing candidate and may not receive transfers in the distribution of the remaining sub-parcels of that count. 69. It is also necessary to monitor the filling of seats on the sub-panels. Each ballot paper lists candidates nominated on either the Oireachtas or Nominating Bodies sub-panels. The calculations team need to ensure that minimum and maximum thresholds of seats for each sub-panel are not breached. 70. Interaction takes place between the inner table and the calculations table for this purpose. Because the counting process in Seanad elections can become complex, and because as the counts proceed parcels of votes at different values come into play, officials involved must exercise close attention and concentration when carrying out their calculations. The first count 71. At the first count, first preference votes are placed individually by count staff 'face up' in front of the nameplate of each candidate at the outer table and are easily visible to the candidates and agents who sit or stand at the other side of the table. 72. When all of the votes are distributed, a staff member sits in front of a parcel of ballot papers in front of each candidate, checks that the ballots have been correctly placed by examining the first preference votes again, counts the balance, and records the number on a template sheet. 73. A second staff member then re-examines the parcel which has already been checked and conducts the check again in the same way. If the result of the second check differs from the first, the second staff member rechecks the ballots and, if necessary, a third person is asked to conduct a fresh check until the difference is resolved. While carrying out these checks, the ballots are moved to the side, one by one and 'face up'. Therefore, they are visible to candidates and agents on the inside of the outer table. The second count 74. The second count may involve the distribution of the votes of a candidate who has exceeded the quota or has been excluded as the lowest voted candidate. The individual in charge of the inner table takes the ballot papers of the successful or excluded candidate from the outer table to the calculations table. 75. When the sub-parcel of ballot papers arrives at the calculations table, the calculations team records the source of each sub-parcel of votes on a sheet. The calculations team then hands the sub-parcels in sequence to the inner table for counting. The ballot papers are then distributed to continuing candidates at the inner table and counted. The ballot papers then go back to the calculations table for recording and computing purposes. 76. When calculations have been completed for the purposes of the second count, the returning officer announces that the results of the second count will be declared. 77. The outer table plays an important role throughout the counting process as the sub-parcels of ballot papers are brought to the outer table at the end of every count. 78. The staff member charged with completing the results sheet calls back each value as it is announced to verify that the correct value is being entered on the sheet. The staff member in charge of the count software then publishes the results of the count to the Oireachtas website, social media platforms and two large screens within the count centre. 79. Data imputed into the count software is received from the calculations team. The processing of that data helps to corroborate the balancing of the figures and assists the returning officer and the calculations team by producing data in different configurations. Subsequent counts 80. The subsequent counts proceed in a similar way. However, the process becomes more complex as the counts proceed. 81. Where the surpluses of candidates who exceed the quota are transferred, the value of the individual ballot being transferred may be reduced. This is because all of the ballots in the parcel or sub-parcel which brought the candidate over the quota must be transferred, but the total value of those ballots may not exceed the value of the surplus. 82. When the lowest candidate is being excluded, that candidate might have received a number of sub-parcels of ballots from other elected or excluded candidates. The face value of the ballots in each of those sub parcels may be different. Each sub-parcel must be distributed in a separate operation beginning with the sub-parcel first received by the excluded candidate. Complexity of the process 83. There are several factors that combine to make the counting process in Seanad elections complex and difficult. First, a record must be created linking the source of each sub-parcel of votes of an excluded candidate with its destination on transfer to facilitate tracking of the provenance of votes. Second, in the case of exclusions, the votes in the multiple sub-parcels transfer to continuing candidates at different values, and each allocation of votes to a candidate must be recorded on spreadsheets to facilitate calculation of the final transfer. The tracking facility is important. Any candidate may assert at the end of a count that they did not receive the votes that they expected from a transfer. The tracking system allows the counting officials to locate the relevant votes and demonstrate to their satisfaction that the counting was correct. Third, where surpluses are transferred, it must be determined whether or not the transferable votes exceed or are lower than the surplus value. Where they exceed the value, the value of the transferred votes must be calculated before candidates are credited with transfer values. Justification for the layout of the room 84. The outer table serves as the general repository for the votes after the first count. It is evident that the complex calculations carried out at the calculations table will very often require a high level of concentration and attention, and warrant being done at a distinct table. 85. The counting of ballots, after the first count, at the inner table also affords certain advantages, including maximising oversight by the returning officer and his officials when counting becomes complex. One disadvantage that arises in carrying out counts at the inner table is that candidates are further away from the counting, and are therefore unable to oversee the counting of votes with the same level of visibility than if the counting took place at the outer table. 86. I accept the evidence of the returning officer that the use of the inner table ensures a high degree of rigour and oversight and therefore reduces the capacity for human error. However, the returning officer accepts that in the circumstances, candidates cannot scrutinise directly each individual vote that has been counted at the inner table. Narrow margins at Seanad elections 87. The agreed evidence was that very small margins of votes can arise upon both the exclusion of candidates and also on the distribution of surpluses. Narrow margins of loss and success are common at Seanad panel elections. 88. The margins involved in several exclusions and surpluses in the 2025 Seanad election were less than the value of a single ballot paper. Again, this is not uncommon in Seanad elections. 89. All witnesses agreed that a narrow margin, in and of itself, was not evidence of a counting error. However, it was relevant to the potential materiality of an error. The count itself 90. The counting of ballot papers for the five panel elections was carried out between the 30 th January and the 3 rd February 2025. The counting of votes for the Agricultural Panel took place between approximately 12:30pm and 11:45pm on the 31 st January 2025. The count continued from approximately 9:30am until 4:30pm on the 1 st February 2025. 91. There was a live stream of the count of the Agricultural Panel, and a recording of the footage was played in court in the course of the evidence. The returning officer and his staff were visible in the footage. The court was also provided with helpful photographs. No major incident of controversy or disturbance is evident from the footage. 92. At the end of the twenty second count, six candidates had been elected, namely Malcolm Noonan, Joanne Collins, Victor Boyhan, Paul Daly, Niall Blaney and Teresa Costello. There were seven continuing candidates, namely, Paraic Brady, Maria Byrne, Ms. Feeney (the petitioner), Eileen Lynch, P. J. Murphy, Sarah O'Reilly and Noel Thomas. As Mr. Thomas was the candidate with the lowest value of votes (71,412) he was excluded. 93. At the end of the twenty-third count, none of the six remaining candidates had reached the quota of 95,667 votes. The petitioner, as the candidate with the lowest value of votes, was then excluded. 94. The twenty fourth count consisted of the transfer of the petitioner's 78,513 votes to the continuing candidates. Following the conclusion of that count, three additional candidates, Eileen Lynch, Sarah O'Reilly and Paraic Brady, had exceeded the quota. 95. There were two remaining candidates in the election, Maria Byrne and P. J. Murphy and two remaining seats. As the number of continuing candidates was equal to the number of remaining seats, under Rule 11(2) of the Second Schedule to the 1947 Act, the two continuing candidates were deemed elected despite not having reached the quota. 96. On the Agricultural Panel, five candidates including the petitioner were excluded by margins below 1000 votes i.e. the value of one original ballot. Furthermore, three Seanad candidates across the five electoral panels were excluded where there was a minimal margin between them and another candidate - two candidates had been excluded by a marginal vote equivalent to less than a single original ballot, and one by a value equivalent to about 1.5 ballots. In each case, the returning officer declined to conduct a full recount, taking the view he was fully satisfied with the accuracy of all counts. 97. All of the votes were visible during the first count and also during the checking of votes where candidates had an equal number of votes after the first count. 98. During the counting of votes for the second and subsequent counts, candidates were not able to scrutinise every ballot individually and could not see the detail in each ballot. No candidate or agent complained about this or raised any objection. 99. Candidates, agents and their connections had to occupy quite a narrow area on the perimeter of the room. I accept the evidence of the petitioner and of Joe Costello that at times it was difficult for candidates and agents to see activities being carried out at the inner table and the calculations table. Mark Wall TD, the petitioner's election agent, stated that there was discussion amongst the Labour representatives about it being difficult to view the counting of votes. I also accept the evidence of Mr. Costello that on occasion he had to crane his neck to see what was happening at the inner table. 100. Neither the petitioner nor any of her Labour Party colleagues brought her concerns about transparency, line-of-sight or the room's layout to the attention of the returning officer or his staff. 101. Nor were complaints made about these issues in the three later Labour, Industrial or Administrative Panels, which also involved Labour candidates. 102. The fact that the returning officer and his staff were not alerted to the line-of-sight issues meant that officials were not prompted to take practical steps to solve or ameliorate the problem. I accept the evidence of the returning officer that he and his staff would have been open to engaging with candidates were any such issues raised. 103. The same observation applies with respect to candidates not having access to the spreadsheets prepared by the calculations team. I accept the returning officer's evidence that, had candidates sought access to the calculation sheets, that request would have been considered. Since no candidate or agent made such a request, it seems to me the issue does not arise. 104. I accept the evidence of Maria Byrne and Terry Murphy that it was possible for parties to conduct effective tallies at the election count. 105. An important issue on which there was consensus across the board was that the count was conducted with care, skill, diligence and integrity. The personnel involved were personally chosen by the returning officer for their experience and training. To her credit, the petitioner acknowledged these points from the outset. 106. I accept the returning officer's evidence that there are differences between Dáil and Seanad elections. As he put it in his evidence: "... Dáil elections are high-volume, less complexity. Seanad elections are lower volume votes, higher complexity". This point was later developed in evidence by Professor Reidy. 107. Officials at the calculations table need a certain minimum level of peace and quiet to facilitate the concentration needed to carry out the complex calculations that arise in Seanad counts. Therefore, there is a balance to be struck between ensuring accuracy in the counting and facilitating the desire of candidates to access and observe the calculation activities. 108. A report issued by The Electoral Commission was put into evidence. It remarked upon the "relatively limited space" available at the count centre in Leinster House. The relevant extract reads: "Unlike at the NUI and TCD elections, the panel counts are open only to those who have acquired permission to be in attendance in advance, given the relatively limited space and the security measures in place in Leinster House. The Members' Restaurant was laid out in a horseshoe pattern, with observers confined to a relatively narrow area around the perimeter of the room while counting took place in the centre." 109. In cross-examination, the returning officer accepted that this was a reasonable description of the venue. He also accepted that candidates who wish to observe the calculation sheets cannot do so from the outer table. Further, he accepted that the same level of peace and quiet that is required at the calculations table was not required at the inner table. Petitioner's request for a recount 110. Following the returning officer's declaration of the result of the twenty-third count and the exclusion of the petitioner, the petitioner requested that he direct a recount of all the ballot papers dealt with during that last count. Rule 14(1) of the Second Schedule to the 1947 Act effectively entitles a candidate as of right to seek a recount of the count that has just completed. The returning officer acceded to the petitioner's request. Candidates and agents were allowed to come closer to scrutinise ballot papers more closely during the recount. 111. No error was found in the recount of the twenty-third count. The result of the count was confirmed as had been declared earlier. 112. The petitioner and her agent, accompanied by Joe Costello and Kevin Humphries of the Labour Party, then requested a full recount. 113. The petitioner expected that, in view of the narrowness of the margin, the decisiveness of the count, and her experience of other elections that the request for a full recount would be granted. 114. The returning officer suspended proceedings for several minutes so that he could consider the request. He consulted his senior counsel, Robert Beatty SC, who was present at the count to advise on legal issues. 115. The returning officer concluded that, since he had no reason to doubt the accuracy of the count and felt there was nothing to suggest that an error had occurred, it was not open to him to grant a full recount. He was fortified in this view by the fact that he had already directed a recount of the twenty-third count and no error was found. Moreover, on the previous day he had recounted the eighteenth count on the Cultural and Educational Panel and no error was found on that occasion either. 116. The petitioner was surprised at the decision to refuse the recount. In conjunction with her agent and with the help of Mr. Beatty SC, she completed a written objection noting her dissatisfaction with the decision to refuse the recount. The returning officer received the written objection, and the document was provided in evidence before the court. 117. The petitioner accepts that, as a matter of fact, the only reason put forward by the petitioner or her team for requesting a recount was the narrowness of the margin and the fact that it meant her exclusion from the twenty-third count. In evidence, she also emphasised the point that any counting system involving humans has a capacity for error. 118. When the petitioner requested the recount, she was not specifically asked for reasons, nor was it suggested to her that she needed to justify the request or identify reasons to doubt the count. 119. The petitioner's formal objection under s. 53(2) of the 1947 Act did not refer to transparency as a ground of challenge. 120. It was accepted by the petitioner's witnesses that no concerns about the distance at which the counting was taking place, or the visibility of same, were relayed to the returning officer or his staff, either at the time of the recount request or earlier. 121. When considering the request for the full recount, the returning officer indicated that he took into account the narrowness of the margin, but did not regard it as a material factor. He ultimately concluded that he had no reason to doubt the accuracy of the counting. 122. The returning officer stated in evidence, and I accept, that had he for any reason not been satisfied or had a doubt about the accuracy of the count, he would always err on the side of caution and grant a recount. He stated his first duty under the legislation is to ascertain the result of the election. 123. In cross-examination, the returning officer denied that his focus was on making progress in the counting or that the desire for expedition played any part in his decision to refuse the recount. He accepted that the livestream footage showed a busy room that was, at times, quite cramped. 124. The returning officer accepted that, if a person objected to the layout of the room on the morning of the count, there was nothing that could have been done at that stage. 125. The returning officer accepted that recounts would generally be conducted with a greater level of oversight by candidates and their agents than the original count. Further, he accepted that a recount is one of the tools available to ensure the primary purpose of a valid poll and to achieve satisfaction as to its validity. 126. He differed with the petitioner on the question of whether the late stage in the counting sequence at which a request is made is a relevant factor in considering a recount. He said that a request for a recount at an early stage must be taken every bit as seriously as a request at the end of the process. 127. He agreed, however, that the petitioner could see the margin at which she narrowly lost out, whereas a candidate excluded much earlier can only wonder at what might have been. In that way, he accepted that a request late on in the process was less speculative. 128. The returning officer accepted that he would not announce the results of each count unless and until he was satisfied with the accuracy of the count. 129. It was put to him that it would take something completely new coming to his attention after he had announced the results of each count for a recount to be granted. In response, the returning officer stated that there would have to be something that would take him from "satisfaction to dissatisfaction" and that he assumes "that would be something new". 130. It was put to him that the returning officer in the Trinity College Panel election seemed to take a different view to him, because in that election a full recount was granted even though the governing rule was the same, and in circumstances where that returning officer would also presumably have taken meticulous care throughout the initial counting. The returning officer acknowledged his understanding that that was the case, but said that because he was not involved in that count, he could not speak to it. 131. It was put to him that in circumstances where the Trinity College Panel recount produced a change of 25 and 15 votes respectively for the two candidates concerned, there was a discrepancy between how the returning officer in that election had approached the request for a recount versus the approach adopted in the present case. The returning officer acknowledged there was a difference in the approach taken but he wouldn't necessarily accept it was a discrepancy. He was unaware, for instance, whether the returning officer in that election had cause to doubt the accuracy of the counting. Expert evidence from political scientists 132. The petitioner called evidence from Professor Eoin O'Malley. The returning officer called evidence from Professor Theresa Reidy. I found the evidence of both witnesses to be helpful. 133. Professor O'Malley acknowledged that counting in Seanad elections can be more complex. In Dáil elections, ballot papers cannot represent a value of less than one vote, so when votes are transferred, ballot papers can be moved between candidates with confidence that their value remains the same. He acknowledged that officials at the calculations table require a particular level of concentration and need to be able to do their calculations in peace. He felt that while such calculations could take place in a separate room, redistributions of votes should take place in full view of candidates and their agents, as was normal in Dáil or other elections. 134. Professor O'Malley stated that the granting of recounts in Irish elections was connected with the margin of difference between two candidates and that in Dáil elections, the narrowness of the margin is usually the reason for a recount being granted. Professor O'Malley stated, and I accept, that recounts may lead to greater satisfaction with election outcomes, and that recounts contribute to the perceived integrity of the Irish electoral system. Professor Reidy broadly agreed with this proposition and accepted that recounts form part of obtaining "losers' consent" at elections. She said that recounts are an important part of the adjudication stage of elections. 135. Professor Reidy stated that tight margins motivate many candidates at Dáil elections to seek recounts. She accepted that a single error at a Seanad Panel election could have a bigger impact than in a Dáil election, due to the smaller number of ballot papers. 136. Professor Reidy stated that the differences between Dáil and Seanad elections are significant. Dáil elections are mass elections with a broad franchise. Seanad elections, particularly the panel elections, have a restricted franchise, with no more than about 1,150 people being entitled to vote, as against 2.2 million people in the 2024 Dáil general election. Secondly, Dáil constituencies are geographically bounded, whereas the Seanad is thematically arranged. Thirdly, there are differences in how people vote and the counting of votes - all of the panel voting is done through postal voting, whereas postal voting rights are heavily restricted in Dáil elections. Most prominently, the majority of people do not get to participate in the Seanad election: it is a very specific, narrow and unusual election. 137. While Professor Reidy recognised the value of recounts in the electoral process, she was firmly of the view that such recounts must be conducted strictly in accordance with the applicable legal framework. She stated that, in Dáil elections, candidates have broad rights to request recounts at any stage, with such requests generally being granted unless considered vexatious by the returning officer. This could arise in Dáil elections not only in relation to winning or losing, but also when candidates are close to qualifying for election expenses, a feature that does not apply to Seanad elections. While acknowledging that she was not offering a legal view, her understanding of the legal position was that the law regarding Seanad election recounts was more restrictive than recounts in Dáil elections. 138. She stated that, if the law were to introduce narrow margins as a specific trigger for recounts, as was done in Canada or in the United States, it would be necessary to define what constitutes a narrow margin and incorporate this into the legal framework. It would also be necessary to adjust the timing of the count accordingly as this would lengthen the overall process. 139. Joe Costello also dealt with the question of tight margins in his evidence on behalf of the petitioner. He stated that, generally, a small margin in an election will lead to a full recount. He stated that, in Seanad elections, it is especially important that narrow margins would be considered because only the returning officer has full visibility of all counts and calculations, unlike other elections where candidates and their agents can observe the process. Therefore, in his view, there may be even greater grounds for a full recount in Seanad elections than others. 140. I will now consider in some detail the main legal issue in the case, namely the correct interpretation of Rule 14(2) of the Second Schedule to the Seanad Electoral (Panel Members) Act 1947 which confers on the Seanad returning officer a power to order recounts. Interpretation of Rule 14 of the Second Schedule to the 1947 Act 141. Rule 14(2) reads as follows: "The Seanad returning officer may at his discretion recount ballot papers either once or more often in any case in which he is not satisfied as to the accuracy of any count." 142. The petitioner contends that Rule 14(2) should be read disjunctively. That is to say, the returning officer may, at his discretion, either: (i) Recount the ballot papers once, or (ii) Recount the ballot papers more than once, where he is not satisfied as to the accuracy of any count. 143. According to the petitioner's interpretation, the requirement that the returning officer not be satisfied as to the accuracy of any count only applies to where he decides to recount the ballot papers more than once. The first recount is not subject to this limitation, and in that regard, the returning officer enjoys a discretion. 144. All other parties disagree with this interpretation. They argue that, applying a plain and ordinary meaning, the clause "in any case in which he is not satisfied as to the accuracy of any count" qualifies the returning officer's discretion to recount. The returning officer can only order a recount (whether one or multiple recounts) if he/she is not satisfied with the accuracy of a count. The petitioner's novel interpretation - proffered for the first time in oral argument on day three of the hearing - is not supported by the actual wording of Rule 14(2). 145. Counsel for the returning officer submits that the petitioner's construction would result in an unconditional discretion for a first complete recount, contrary to the legislative intent. This would create a complex, overlapping and potentially unwieldy system of Dáil recounts, which could not have been intended by the legislature. The petitioner's strained construction breaches Supreme Court guidance that the wording of legislation must be interpreted in its full and proper context - the "text in context" approach mandated in Heather Hill Management Company CLG v. An Bord Pleanála [2022] 2 ILRM 313 . The first respondent submits that reading Rule 14(2) in the context of the 1947 Act as a whole reinforces the respondent's interpretation. 146. Supporting the first respondent's position, the notice parties contend that the petitioner's interpretation is not in line with a literal, contextual or purposive interpretation of Rule 14(2). The petitioner's interpretation can only be achieved by the court "reading in" punctuation and subclauses that do not appear in the legislative text. None of this is permissible as it involves rewriting the provision rather than interpreting it. The words chosen by the Oireachtas give a discretion to the returning officer to conduct a recount or recounts (once or more often) and identifies a prerequisite for the exercise of that discretion, namely that he is not satisfied as to the accuracy of any count. 147. Counsel for the Fine Gael respondents agreed with this, and referenced the Irish language version of Rule 14(2) which provides as follows: "Féadfaidh ceann comhairimh an tSeanaid, dá dhiscréid féin, páipéir bhallóide d'athchomhaireamh uair amháin nó níos minice in aon chás nach deimhin leis aon chomhaireamh áirithe a bheith cruinn." 148. Counsel argued that the natural and ordinary meaning of both the Irish and English language versions include a conditional structure whereby all recounts, whether the first or later recounts, are subject to the limitation that the returning officer be "not satisfied" as to the accuracy of any count. The court's determination of the correct interpretation of Rule 14(2) 149. Having re-read the provision several times and considered the helpful submissions made by the parties, I have come to the following conclusions on the meaning of Rule 14(2). First, the absence of punctuation or brackets from the rule suggests to me that the clause "either once or more often" , must be read as one, rather than artificially divided into two parts. The run of the sentence suggests that the condition of dissatisfaction applies to the entire provision. 150. Second, the sequencing of the words and the unbroken flow of the sentence, without subclauses or punctuation, suggests a parliamentary intention that the precondition would apply to all Rule 14(2) recounts. 151. Third, the respondents are correct that the petitioner's interpretation would require a reordering of the words, or at the very least, the insertion of punctuation. This is not ordinarily permissible. I accept the point that, had the legislature intended the petitioner's meaning, this could easily have been achieved by alternative wording. 152. The respondents also point to the late stage at which the petitioner introduced the argument, the fact that it didn't feature in pre-trial submissions, or even in the opening of the case, but rather was introduced on day three of the hearing. In my view, while the lateness of the argument is striking, this cannot affect the court's determination of the correct meaning to be given to the provision. The petitioner's interpretation is either correct or incorrect, and any failure or delay in making the argument should not affect the interpretive exercise. Perhaps the only relevance of the lateness of the submission is that it makes it difficult to reconcile the interpretation with being the obvious literary meaning. 153. It seems to me the high watermark of the petitioner's argument is that the respondents' interpretation risks reducing the provision to an illusory power because it must be presumed that, when declaring the result, the returning officer was satisfied as to the accuracy of the count, and that therefore the Oireachtas must have intended that the recount power under Rule 14(2) would be capable of being used even when, moments earlier, the returning officer has declared himself satisfied as to the accuracy of the count just delivered. In other words, "the accuracy of any count" should already be taken as a "given" before results are declared and therefore cannot on its own be a basis for rejecting a request for a recount which is otherwise reasonable. 154. The petitioner's interpretation of the rule was fairly put to the returning officer in the course of the evidence so that he would have an opportunity to deal with it. The returning officer had earlier given examples of situations where he would order a recount, notwithstanding an earlier declaration of a result. These include a situation where a candidate draws to his attention a factual inaccuracy in the voting, where staff members are found to be colluding with efforts to distort the vote or where there is a disturbance at the count centre. He also gave a less extreme example where the recount of an individual count earlier in the process might have thrown up an error or an anomaly (which did not arise on the facts of the present case). 155. The petitioner argues that it must as a matter of law be presumed that a returning officer will conclude a count and declare a result only when satisfied as to its accuracy, following a careful and transparent counting process. To suggest otherwise would be absurd. Therefore, says the petitioner, not being satisfied as to the accuracy of a count cannot credibly be put forward as a condition precedent to the ordering of a first recount. 156. While aspects of that argument may have a certain appeal, my main difficulty with this submission is that it ignores the actual wording chosen by the legislature which, on a plain reading, makes the condition of dissatisfaction with the accuracy of the count applicable to both first and subsequent recounts. While on one view it may be thought to be surprising, the wording of the provision on its face indicates that dissatisfaction with the accuracy of the count was intended to be a condition precedent to the ordering of any recount in a Seanad election. 157. In my view, the points raised by the petitioner on the interpretation question speak more about what the petitioner feels the law should be , rather than what the wording of the provision actually says. 158. As referenced above, Heather Hill makes clear that the words of a section are what should first be examined in its interpretation, and that the onus is on a party contending that a statuary provision does not have the effect suggested by the plain meaning of the words chosen by the legislature to establish this (para. 214). The court's task is to construe the words of the section having regard to the context of the section, the Act in which the section appears, the pre-existing relevant legal framework and the object of the legislation insofar as discernible. 159. Adopting this "text in context" approach, it seems to me that there are important pointers both within the 1947 Act itself, and in equivalent legislation, which deal with the power to order recounts in Dáil elections. 160. Rule 14(2) should be read in the context of Rule 14(1) which provides that "Any candidate or his agent may, at the conclusion of any count, request the Seanad returning officer to re-examine and recount all or any of the ballot papers dealt with during that count, and the Seanad returning officer shall forthwith re-examine and recount accordingly the ballot papers indicated" . This section allows for a recount of votes without the requirement that the returning officer be "not satisfied" as to the accuracy of the count, but only relates to the last single count that has taken place. I accept the notice parties' submission that the interplay of Rules 14(1) and 14(2) suggest that the legislature endeavoured to strike a balance between the right of candidates to request a recheck of votes as each count proceeds, and a discretion on the returning officer to order a full recount provided he was dissatisfied with the accuracy of any count. In my view, it cannot be said that striking the balance in that way is absurd. It may be different to the rule for recounts in Dáil elections, but it is not absurd. 161. Section 125 of the 1992 Act deals with recounts in the context of Dáil elections. I do not intend to attempt an interpretation of this provision in any great detail, because any such interpretive exercise should await an appropriate case where it may be necessary for the court's determination. Nonetheless, a brief consideration of the 1992 Act is warranted and relevant to the interpretive exercise I must perform. The petitioner asks rhetorically: if the 1992 Act confers a very broad power to recount in a Dáil election, why would the Oireachtas have intended the power to recount in Seanad elections to be so restrictive in comparison? 162. Section 125(1) permits any candidate or their election agent, at the conclusion of any count, to request the returning officer to re-examine and recount all or any of the papers dealt with during that count. This is similar in substance to Rule 14(1) of the Second Schedule to the 1947 Act in respect of Seanad elections. 163. Section 125(2) provides that: "the returning officer may at his discretion recount papers either once or more often in any case in which he is not satisfied as to the accuracy of any count. The power under this subsection of a returning officer to recount papers shall extend to papers dealt with at an earlier count than the immediately preceding one." This is similar to Rule 14(2) of the Second Schedule to the 1947 Act, dealing with Seanad elections. 164. Section 125(3) of the 1992 Act provides that: "(3)(a) As respects each candidate, one request (and not more) may be made by him or his election agent for a complete re-examination and recount of all parcels of ballot papers and the returning officer shall re-examine and recount the parcels of ballot papers accordingly. (b) In the re-examination and recount, the number or order of ballot papers in any parcel shall not be disturbed. (c) Nothing in the provisions of this subsection shall make it obligatory on the returning officer to re-examine or recount the same parcel of papers more than once, but if an error is discovered which is, in the opinion of the returning officer, a significant error likely to affect the result of the election, the returning officer shall count all the papers afresh from the point at which the error occurred. (d) Nothing in this subsection shall make it obligatory on the returning officer to comply with a request by a candidate or his election agent which, in the opinion of the returning officer, is frivolous or vexatious. (e) A request under this subsection may be made only at the conclusion of a count." . Under the petitioner's interpretation of Rule 14(2), the returning officer's power to order a single recount is untrammelled by any requirement of being "not satisfied" about the accuracy of any count. In my view, the respondents are correct to point out that the same text as appears in Rule 14(2) relating to Seanad counts also appears in the first sentence of s. 125 of the 1992 Act which applies to Dáil elections. Reading the provision across, if the petitioner's interpretation of Rule 14(2) were correct, s. 125(2) of the 1992 Act would effectively confer an automatic entitlement to one full recount. This presents a further difficulty with the petitioner's argument. Were that so, it would render almost all of s. 125(3), which provides for the circumstances and scope of recounts at Dáil elections, duplicative and confusing, and potentially contradictory. The petitioner's argument does not sit easily with the run and logic of this equivalent legislation dealing with recounts in Dáil elections. I agree that this inconsistency tends against the petitioner's interpretation. 176. Finally, it seems to me that the absence of an unconditional, full recount right within the Seanad legislation appears to be deliberate. With respect to Dáil elections, the law was amended in 1963 (by virtue of the Electoral Act 1963) to allow each candidate one complete recount as of right. This was carried forward into the Electoral Act 1992. No such amendment was made with respect to Seanad Panel elections. I agree with the respondents' submission that the court should not strain the interpretation of Rule 14(2) in order to bridge a potential policy gap that the Oireachtas has chosen to leave in place. At the end of the day, the court's task is to interpret and apply the legislation, not to rewrite it. 177. For all of these reasons, I believe that Rule 14(2), correctly construed, gives a returning officer in a Seanad election a discretion to order a recount, provided he is not satisfied as to the accuracy of any count. Conclusions on the petitioner's argument as to lack of transparency 178. Based on the witness and affidavit evidence, and the factual findings that I have summarised earlier in this judgment, I am not satisfied that the petitioner's transparency ground has been evidentially sustained. From my read of the evidence, the main impetus for this petition seems to have been the petitioner's unhappiness with the returning officer's refusal of the recount. The transparency complaint, while legitimate, bona fide and undoubtedly a genuine source of frustration for the petitioner, came across as a supplemental ground, adding to the petitioner's dissatisfaction with the recount refusal, rather than a standalone complaint which might on its own have prompted a petition. 179. I find the evidence as to the transparency argument thin and quite uneven. Some of the petitioner's witnesses displayed a degree of inconsistency as to what level of candidate oversight was necessary or desirable. Some witnesses were critical of the venue and the layout, and I am sure that in future elections the authorities will take this into account. The petitioner and some of her witnesses felt that the Members' Restaurant was an unsuitable venue, too cramped and very crowded. This view was supported to a certain degree by the observations in The Electoral Commission report cited by the petitioner. 180. However, I must bear in mind that nobody formally objected to the venue in advance, nor raised any objection to the layout on the day of the count. Seanad election counts have taken place at the same venue since at least 1993, apparently without objection. 181. Moreover, on this particular issue a degree of deference should be accorded to the views of the returning officer, whose task it is to select a suitable venue, whilst balancing sometimes competing objectives such as transparency, accessibility and orderliness of an election. In my view, the evidence as to the suggested unsuitability of the venue falls short of establishing an irregularity within the meaning of the legislation . 182. The main complaint identified in the evidence was the inability of candidates to oversee the counting process. It seems to me that, at a level of principle, this is an important issue. The returning officer and his staff are required to strike a careful balance between the objectives of conducting an accurate and orderly counting process, whilst at the same time ensuring transparency by allowing candidates and their agents to monitor the counting. However, it seems to me that on the facts of the present case the issue did not properly arise as an issue of contention. I say that because firstly, no complaint was made to the returning officer or his staff; secondly, such line-of-sight issues as arose were not sufficiently strong to warrant complaints being made during the count; thirdly, no transparency objection was made during later panel counts, notwithstanding the involvement of Labour Party candidates; fourthly, there was no suggestion that candidates or agents were deliberately blocked or ignored; and fifthly, the petitioner herself disavowed any entitlement to "individual scrutiny of individual ballot papers". 183. The overwhelming thrust of the evidence was that the count was well run and professionally overseen by the returning officer and his staff. The layout of the count centre was designed to maximise the prospects of an orderly and accurate count. This is particularly important given the demonstrated complexity of the Seanad counting process. 184. Virtually all witnesses, including the petitioner herself, praised the work of the returning officer and his staff. The count was conducted with care, skill and integrity. The personnel involved were trained and experienced and were encouraged to bring any issue of concern to the attention of the returning officer. The evidence establishes that the count was conducted at a careful and slow pace, with multiple checks at virtually every stage. All told, the evidence on the transparency side of the case falls short of establishing the existence of anything along the lines of wrongdoing, impropriety, disorder, chaos, mass resentment or other irregularity that might begin to call into question the validity of the count. Counting to take place "in the presence of" candidates 185. As we have seen, s. 53 of the 1947 Act requires the returning officer to ascertain the result of a Seanad general election "in the presence of such candidates as may be in attendance" and "in accordance with ... the rules contained in the First and Second Schedules to this Act". Rule 13 in the First Schedule permits a candidate and their agent to "be present at the opening of the Seanad ballot box or the counting of the vote s " . The petitioner argues that the manner in which the returning officer conducted the counting of votes did not comply with s. 53 and/or Rule 13 of the First Schedule because the ascertainment of the result did not take place " in the presence of " the petitioner or her agent, and they were not permitted to " be present at " the counting of the votes. The petitioner argues that the underlined phrases should be given a reasonably broad interpretation such that the undoubted right to be physically present in the count room necessarily requires that the counting take place sufficiently close to candidates so they can meaningfully observe and scrutinise the counting. 186. The first respondent submits that the underlined words mean what they say they mean, and no more. The concept of "presence" in the legislation denotes physical proximity to the counting process, not a right to detailed scrutiny and oversight of individual ballots. 187. In my view, it is important to note the consensus in the evidence as to the value of candidates being able to watch the counting of votes as it occurs. Professor Reidy regarded this as "a very valuable thing" and an important aspect of the transparency principle that underpins the integrity of elections. She made these remarks in the context of a discussion about candidates doing tallies, but the point has a broader significance in my view. 188. In the notice parties' initial written submissions at para. 32, there is reference to a joint report on Electoral Law of the Council of Europe and the Venice Commission of 3 July 2013. The report includes a study on problematic issues in electoral administration. The study observed inter alia: "155. For the counting process to be open and transparent, it has to be carried out in the presence of observers and representatives of candidates, parties, and electoral alliances ... However, in some cases electoral observers reported that the distance they were required to remain from the counting tables lessened their ability to observe the process effectively ... 156. It is of paramount importance that the vote count is conducted correctly. The correctness of the count depends on clear procedures, adequate staff training and their commitment to the process." 189. In my view, these extracts and the evidence given by both political scientists rightly emphasise the importance of candidates and their agents being able to view the counting of votes as it occurs. Whether it is sourced from the legal right to be present at the count, or whether it is part and parcel of important electoral values such as transparency and integrity, it seems to me that, at a level of principle, candidates should be permitted to observe the counting of votes unless there is some particular reason or justification preventing this. In my view, there was no great dispute about this on the evidence. 190. What was in dispute, however, was how far this entitlement extends. Even amongst the petitioner's side, there were different views on how far this should go. In my view, several questions may potentially arise under this heading when determining the extent of this entitlement: · Should candidates be permitted to view the markings on every single ballot as they are counted? · Should candidates be allowed to stand over counting officials as votes are counted? · Should the level of oversight of the inner table be the same as that permitted over the calculations table? · Does this entitlement extend to candidates being allowed view the counting process generally, or is there a right to scrutinise individual ballots? · If so, does this extend to a right to scrutinise the actual markings on every ballot? · What balance should be struck between giving candidates a reasonable level of oversight of the process, whilst upholding the need for counting officials to be allowed to carry out their responsibilities free from interference or distraction? 191. As it happens, on the facts of this petition, it has not been necessary for the court to resolve these issues. Based on the run of the evidence, the case effectively proceeded on the assumption that candidates have a right to observe the counting of votes, but that this does not necessarily extend to a right to scrutinise individual ballot papers. Terry Murphy of Fine Gael made the point that there are aspects of Dáil and local elections which are also carried out at a remove and are analogous to the inner table set-up described in the evidence. He said that after boxes have been opened in a Dáil election and the tally of first preferences has been done, those votes are taken away, sorted and put into pigeon-holes. In this way, candidates can see the counting being done, but cannot see the details on the ballot papers. 192. In her evidence, the petitioner accepted that expecting individual scrutiny of individual ballots would be going too far as it would involve a level of oversight that was "invasive and excessive". In cross examination, she fairly accepted "obviously, we don't have to see every ballot". It seems to me that that acknowledgement marks out the tramlines of what the court is being asked to decide in this petition, and obviates the necessity for the court to address the wider issues canvassed above. 193. Having carefully considered the evidence, I am satisfied that the petitioner has established that on occasion her view of the counting of votes at the inner table and of the calculations table was impaired. However, it seems to me that on a fair reading of the evidence, this was only an occasional difficulty rather than a permanent feature that blocked off all oversight of the process. In my view, this was something that could have been addressed by the petitioner or her agent bringing the difficulty to the attention of the returning officer, thereby giving him a fair opportunity to address the complaint. The evidence therefore supports the view that practical steps could well have been taken to ameliorate the line-of-sight issues, had these been raised with staff. 194. The fact that it did not occur to the petitioner or her colleagues to formally complain about this issue live at the count centre supports the conclusion that these were not top-of-the-order complaints dominating the minds of those present. In these circumstances, it would in my view be unfair to the returning officer and his staff, and also to those candidates who were successful in the election, to invalidate the election on account of the transparency issues raised, without at least giving the returning officer an opportunity to address the complaints on site. 195. I am not persuaded that the petitioner has established that she was actually prevented from observing the counting of votes (if indeed this is the legal standard under the Act) in a manner that would constitute a breach of s. 53 and/or Rule 13 of the First Schedule to the 1947 Act. I am basing this conclusion on the run of the evidence, the reasonably modest nature of the complaints and their duration, the absence of any complaint from the petitioner on site, the absence of any complaint or objection from any agent or other candidate, the competent and professional manner in which the count was conducted, the willingness of the returning officer and his staff to engage with requests, the petitioner's fair acknowledgement that individual scrutiny of individual ballots was not required, and the fact that when the recount was requested, the transparency complaints were not sufficiently severe in the minds of the petitioner or her agent to prompt them to mention those issues. 196. Borrowing the words of MacMenamin J. in Jordan, I find that the petitioner has not adduced "clear and cogent" evidence to substantiate her case as to a lack of transparency in the conduct of the count. 197. Returning to the leading case of Kiely , it is clear that the petitioner bears the onus of proving, on the balance of probabilities, that the suggested error(s) were likely to have affected the result of the election. A "possible" effect would not be sufficient, nor would some insignificant or immaterial effect meet the threshold. McKechnie J. identified the test to be applied at para. 107 as follows: "In this case the petitioner must prove that the error of law above declared is likely to have affected the result of the election in question. This requirement under s. 5(1) of the 1974 Act, has a number of aspects to it: one relates to impact, a second relates to outcome and a third describes the level to which both must be established. By "impact" I mean "affect" and by "outcome" I mean "election result". This is the statutory obligation which must be satisfied on the balance of probabilities. There is however no obligation to prove more. Certainly one does not have to establish that the candidates, as nominated in the declaration of the returning officer, would be different but for the error. Nor is it necessary to show that a petitioner would himself have obtained a seat. In addition, the verb "affect" is not qualified in any way, unlike that in Jordan v. Minister for Children and Youth Affairs [2015] IESC 33 , [2015] 4 I. R. 232 therefore the same level of impact is not required. However, a "possible" effect only would not be sufficient and neither would some insignificant or immaterial effect meet the threshold. Rather in my view, the petitioner must identify consequences, referable to the result, which are not electorally inconsequential: if established, the same will be a sufficient compliance with this aspect of the section." 198. Applying McKechnie J.'s test, I find that the petitioner's transparency ground falls short of meeting the test for demonstrating the existence of a "mistake or other irregularity" within the meaning of section 132(5) of the 1992 Act. Conclusions on the refusal of a recount 199. As I have mentioned already, the refusal of the returning officer to order a recount appears to have been the main catalyst for the bringing of this petition as it occurred at a crucial stage where the margin between the petitioner's exclusion and election was one ninth of a vote. 200. When the case was initially opened to me, I confess that I was somewhat surprised that the recount had not been granted. After all, a recount is a built-in safeguard which assists in the primary objective of ascertaining the correct result of the poll and, importantly, assists in obtaining "losers' consent" at elections. The request for the recount here came at a decisive stage and could under no circumstances have been regarded as frivolous, vexatious or a waste of anybody's time. Moreover, everyone would accept that any process involving human beings has a capacity for error. 201. Indeed, many people in Ireland will have memories going back to childhood of dramatic scenes from count centres in Dáil elections, where recounts late into the night resulted in changes to previously declared results. The marathon recount in the Dublin South Central constituency in 1992 was mentioned by the expert witnesses in the evidence where Ben Briscoe of Fianna Fáil held on to take the last seat from Eric Byrne of Democratic Left. After ten days of counting, Briscoe was declared the winner, leading him to describe the long recount as "the agony and the ex-TD." 202. However, while my initial reaction to the refusal of the recount was one of surprise, this was informed by several issues which were subsequently clarified in the course of the evidence. These factors were: (a) the fact that tight margins are reasonably common place in Seanad elections, with candidates quite frequently being excluded on a margin of less than one vote; (b) the fact that the legal regime for recounts in Seanad elections differs to that in Dáil elections and is, in fact, more restrictive; (c) the fact that the pace of Seanad Panel counts is slower than in Dáil elections; and (d) the fact that the power to order a full recount in Seanad elections is not open-ended, but rather is conditional on the returning officer not being satisfied about the accuracy of any count. 203. Both Professor O'Malley and Professor Reidy emphasised the importance of elections being conducted in accordance with the applicable legal regime. This brings us back to the key legal question for determination in the case, namely, the correct interpretation of Rule 14(2) of the Second Schedule to the 1947 Act. For the reasons already outlined, I have held that Rule 14(2), properly construed, requires the Seanad returning officer to be "not satisfied" as to the accuracy of any count before exercising his discretion to grant a recount once or more often. That legal finding necessarily impacts the petitioner's entire case. 204. It is important to observe that Rule 14(2) is not prescriptive as to the matters to be considered by a returning officer in assessing whether he or she is "not satisfied" as to the accuracy of any count. It seems to me there is much to be said for the view of Mr. Groves in the present case that, if there is any doubt about the accuracy of any count, a returning officer should err on the side of caution and consider granting a recount. 205. I will not attempt a list of the factors to which regard should be had, for fear that it may be considered an exhaustive checklist. However, the rule speaks of a discretion, which is suggestive of a judgment call and some element of flexibility. Even though the narrowness of a margin in a late count is not per se indicative of any error, it strikes me as a legitimate matter for a returning officer to consider in the round in any given situation, together with any other factors which he/she feels is relevant, alongside the statutory requirement of considering whether he/she is not satisfied as to the accuracy of any count. The petitioner's alternative argument - no reasonable returning officer would have refused a recount 206. The petitioner also raises a 'fallback' argument that, even if the "not satisfied" condition is binding, no reasonable returning officer would have refused a recount on the facts pertaining. I have considered this submission carefully, and having reviewed the transcripts, note that in considering granting a recount, Mr. Groves indicates that he took into account the narrowness of the margin between the petitioner's election and exclusion, albeit he felt it was not indicative of any error per se. I note that this was the view of other witnesses who were asked the same question. 207. In Ni v. Garda Commissioner [2013] IEHC 134 , Hogan J. considered at para. 17 the concept of a statutory officer being "satisfied" about something: "The use of the term "satisfied" by the legislative draftsman is something of a term of art in the context of a requirement that a decision maker exercising a discretionary statutory power must be "satisfied" of certain facts. It imports the triple requirement that the decision must be taken bona fide, that it be not unreasonable and is factually sustainable." 208. It seems to me that the exercise of the returning officer's discretion in the present case meets the triple requirement set out by Hogan J. above. 209. In light of the following factors, it cannot reasonably be said that the refusal of the recount was legally irrational: first, nobody has suggested that the decision was not taken bona fide ; second, no candidate or agent has identified any error in the counting process (a narrow margin is not evidence of an error); third, no mistake or irregularity or issue of doubt was brought to the returning officer's attention on the day of the count; fourth, Professor O'Malley confirmed that he had no reason to believe that there was any actual error; fifth, the returning officer reflected on the request for the recount, discussed it with his counsel and applied his own independent judgment as to the accuracy of the count; sixth, the evidence establishes that the returning officer and his staff were conscientious, experienced, diligent and well-trained; seventh, count staff were instructed to err on the side of caution and bring to Mr. Groves's attention any disputed ballots or calculations; eighth, the count was conducted at a careful and slow pace, with repeated checks and rechecks at most stages; ninth, the evidence showed that fewer than 6,000 ballot papers were counted across five days. This contrasted with an average of 51,000 ballot papers in Dáil constituencies; and tenth, previous individual counts had not revealed any error. 210. In these circumstances, it was not unreasonable for the returning officer to have confidence in the accuracy of the count. 211. Since returning officers exercise their own individual sense of judgment, it follows that their approaches to requests for recounts and the manner in which they exercise their discretion may differ from case to case. It may very well be that not every returning officer would agree with Mr. Groves's view that the lateness at which a recount is sought, and the decisiveness of that count to the question of exclusion versus election is not a relevant consideration. Counsel for the petitioner argued that, since by the twenty-third count the petitioner could see the minuscule margin by which she was about to lose out, unlike a candidate who was excluded at a much earlier stage, she did not have to speculate as to whether she has secured sufficient transfers to place her close to the election 'goal line', and should therefore, if an "err-on-the-side-of-caution" analysis is actually applied, have been granted a recount. 212. In considering this issue, it is important to bear in mind that it is not the role of the election petition judge to substitute his or her own view for that of the returning officer on any given issue or judgment call. Case law such as the decisions of O'Donnell and Clarke JJ. in Kiely indicate that a degree of deference will be due to the returning officer when making a judgment call with respect to one of his functions (see para. 3 of the judgment of O'Donnell J. and para. 165 of the judgment of Clarke J.). 213. While the deference point is usually made in the context of judgment calls on disputed ballots, I think it also has some application in the context of considering a request for a recount under Rule 14(2). After all, the rule makes express reference to the "discretion" of the returning officer and the need for him to be "satisfied" . Both words are suggestive of an element of margin of appreciation. At the same time, I note the discussion in Kiely to the effect that a decision of a returning officer that crosses over the line to being ultra vires the relevant statute, may not be saved by the doctrine of deference. 214. The spine of the returning officer's decision here was his conclusion that the precondition of "not being satisfied as to the accuracy of any count" was not met, and therefore the request for a recount should be refused. For the reasons indicated, particularly the absence of any specific matters being brought to his attention, I find that the petitioner has not proved that the returning officer's conclusion was legally irrational on the facts pertaining or that no reasonable returning officer would have refused a recount in the circumstances . 215. Finally, I will address briefly a point made by the petitioner concerning the Trinity College Panel of the Seanad election. The petitioner referred to the evidence of Professor Reidy, confirming that in the 2025 election to that Seanad election panel, one candidate, Ms. Hazel Chu, was granted a recount. The petitioner submits that there was no evidence before the court to suggest this recount was granted on the basis of anything other than the narrowness of her margin of defeat. 216. I agree with counsel for the returning officer that there is insufficient evidence before the court to warrant the court basing any conclusion on the returning officer's decision in that other election. The petitioner bears the burden of proof on all factual issues, and the court simply does not know the circumstances of, or basis for the decision to grant that recount. That being so, it would not be appropriate to speculate or draw inferences in a vacuum. Decision on whether to order a recount for the purpose of the trial of the petition 217. The petitioner invites the court to avail of its power under Rule 7 of the Third Schedule to the 1992 Act to direct a recount for the purpose of the trial of the petition. Since the petitioner has failed at the first hurdle of demonstrating the existence of a mistake or irregularity, the question of whether the court should so exercise its discretion under the Rule does not arise. The "catch-22" dilemma that I mentioned at para. 33 of this judgment therefore has not crystallised. In the circumstances, it would not be appropriate to order a recount on a purely speculative basis. 218. Insofar as it might be suggested that the power to order a recount involves no more than a neutral intervention, does not involve invalidating votes, and seeks no more than to ascertain the correct result of the poll, it would not be appropriate in my view to order a recount on such a "what-harm-could-it-do" basis. The power to order a recount is not a mechanism for a general recount on demand. A petitioner must first establish the occurrence of a mistake or irregularity in the conduct of the election. In fairness to the petitioner's submission, it was never suggested that the mere bringing of a petition was enough to warrant a recount. Since the petitioner has failed at the initial hurdle, the option of the court directing a recount does not arise. Conclusion 219. For the reasons indicated, I find that the petitioner has failed to prove the two complaints set out within this election petition, and the petition must be dismissed. As the petitioner has failed to demonstrate the existence of a "mistake or other irregularity" within the meaning of s. 132(5) of the 1992 Act, it is not necessary for the court to consider the second limb of the test of showing that such mistake or other irregularity was "likely to have affected the result of the election". Therefore, I am reserving for determination in an appropriate case the unresolved questions as to whether an unlawful refusal of a request for a recount in a Seanad election, or a failure to conduct part of the count in a transparent manner, constitutes a mistake or other irregularity which is likely to have affected the result of the election within the meaning of s. 132 of the 1992 Act, so as to entitle a petitioner to apply to the High Court for an order to recount votes for the purpose of the trial of the petition. 220. Arising from the run of the case and the sequencing of issues in this judgment, it has not been necessary for the court to resolve several issues in these proceedings. These include: (1) The respondents' preliminary argument that the petitioner's written objection under s. 53(2) of the 1947 Act did not refer to transparency as a ground of challenge, and that therefore she should not have been permitted to advance the transparency element of her case. I expressly hold over for another case the question as to whether s. 132 of the 1992 Act and s. 53 of the 1947 Act require that only those grounds identified in a formal objection under s. 53(2) may be entertained in a High Court challenge. (2) The question as to whether the petition procedure may be used as a means of obtaining a recount based on a pure error of law in the absence of positive proof that the error had an effect on the result. (3) The question as to the correct interpretation of s. 53 of the 1947 Act and/or Rule 13 in the First Schedule to that Act, and the extent to which a candidate's entitlement to be present at the counting of votes extends to a right to actively participate in the overseeing of the count. (4) The question as to the correct interpretation of the recount provisions for a Dáil election in s. 125 of the 1992 Act. (5) The practical question as to whether, in the future, it would be appropriate to hold election counts in the Members' Restaurant in Leinster House. This will be a matter to be determined by the relevant returning officer in due course. 221. These issues will have to await consideration in a suitable case where they may fall to be determined. 222. In the circumstances, the petition is dismissed. Signed: Micheál O'Higgins Appearances: For the petitioner: Conor Power SC and Hugh McDowell BL instructed by O'Mara Geraghty McCourt Solicitors. For the first respondent: Catherine Donnelly SC and David Leonard BL instructed by the Office of the Parliamentary Legal Advisors. For the fourth, fifth, ninth and tenth respondents: Séamus Clarke SC and Cian Kelly BL instructed by Kevin O'Higgins Solicitors. For the 6 th respondent: Síne Finn BL instructed by Daniel Kreith Solicitors. For the first notice party: Lily Buckley BL instructed by the Chief Prosecution Solicitors Office. For the second and third notice parties: Bairbre O'Neill SC and Aoife McMahon BL instructed by the Chief State Solicitor's Office. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC633.html