High Court strikes out proceedings as res judicata and abuse of process due to prior judgment on same issues.

THE HIGH COURT

[2025] IEHC 760

RECORD NO. 2025/6062P

BETWEEN

NIALL BYRNE

PLAINTIFF

AND

TANAISTE, MINISTER FOR HOUSING, ATTORNEY GENERAL, IRELAND (No. 2)

DEFENDANTS

Ex Tempore Judgment of Mr. Justice Cregan delivered on 19th December 2025

Introduction

1. This is an application by the defendants to strike out the plaintiff's proceedings on the grounds that they are res judicata and/or that they are bound to fail and/or that they are an abuse of process.

Background

2. The background to this case is as follows. The plaintiff issued a similar set of proceedings in October 2025, seeking various reliefs against the same defendants and also seeking to enjoin the presidential election from going ahead. I gave my judgment in that case on 20th October, 2025. That case was entitled Niall Byrne v. The Tánaiste, The Minister for Housing, Local Government and Heritage, Ireland and the Attorney General (Record Number 2025/5467P) [2025] IEHC 565. In that judgment, I refused the reliefs sought by the plaintiff and I dismissed the plaintiff's proceedings, on the grounds that the issues raised were not justiciable and/or that the issues raised failed to disclose a reasonable cause of action.

Events after my judgment

3. After I had delivered my judgment, the plaintiff, as is his right, appealed my judgment to the Court of Appeal and the Supreme Court. These appeals are still pending. However, the plaintiff also made a number of unsuccessful ex parte applications, to different judges of the High Court, seeking to adduce additional evidence in his first set of proceedings and to have the first set of proceedings re-entered. He eventually made such an application to me. However, I explained to the plaintiff that his proceedings had been struck out and that it was not possible for his application to be granted. Mr. Byrne, who is unfailingly courteous to the Court, accepted this. He also applied to me to recuse myself on the grounds of objective bias, but as there appeared to be no grounds for this application, I refused this application also. It appears that, after his application to re-enter his first set of proceedings had been refused, from what Mr Byrne has indicated to the Court, he then decided to issue the second set of proceedings. Comparison between the first set of proceedings and the second set of proceedings

4. The plaintiff, in his first set of proceedings, sought a number of reliefs in his plenary summons and in his notice of motion. These are set out in my judgment delivered on 20th October, 2025 in the first set of proceedings. At paragraph 7 and 8, of that judgment, I stated as follows: "The reliefs sought in the proceedings, as set out in the plenary summons, are substantially the same as those sought in the notice of motion. In his notice of motion, the plaintiff seeks the following reliefs: i. A declaration of unconstitutional interference under Article 28A. The Tánaiste in instructing local governments and councillors to block or discourage the nomination of independent presidential candidates. ii. The declaration that the presidential nomination process was void and repugnant to Articles 1, 3, 5 and 12.4.5 of the Constitution, which affirm Ireland's democratic character and the people's right to choose their own government. iii. An order that the entire nomination and election process be rerun democratically, without interference from any political party or national direction, to uphold constitutional fairness and the sovereignty of the people. iv. In the alternative, a declaration that the plaintiff, having lawfully declared candidacy and having refused to participate in an unconstitutional process, is the only validly nominated candidate, under Article 12.4.5, and is therefore duly elected without a vote, as no other valid nominations exist, and will hold the office until a constitutional referendum is held, to make amendments to Article 12 and to remove the undemocratic nomination process. v. A declaration that the overall process appears undemocratic, giving the impression that the government is choosing the government, rather than allowing the people to make that choice through free and fair nomination."

5. The reliefs sought by the plaintiff in his second set of proceedings, are set out in his plenary summons and they are as follows: i. A declaration that the directive or order issued by the Tánaiste on or about 6th September, 2025 was unlawful, ultra vires and unconstitutional. ii. A declaration that the presidential election order 2025 ('the Brown order') was vitiated and rendered void in consequence of such unlawful interference; iii. A declaration that the 2025 presidential election was unconstitutional and unlawful in its procedure, arising from the fact that an executive directive or party whip, was issued by the Tánaiste on or about 6th September, 2025, which unlawfully interfered with and overrode the Brown order of 3rd September, 2025, thereby tainting the nomination process and rendering the election invalid; iv. A declaration that the acts complained of constitute constitutional pre-selection interference amounting to election inference under Bunreacht na hÉireann and the Presidential Elections Act, 1993; v. An order staying any inauguration or swearing in pending determination of these proceedings; and/or vi. A declaration that such stay does not affect the continuity of the Presidency under article 12.11 and 14 of the Constitution.

6. Ms. O'Neill, senior counsel for the defendants, has carefully compared the reliefs sought in the first and second set of proceedings and it is clear that, in substance, they are identical in all, or almost all, respects. Mr. Clarke, senior counsel for Mr. Harris TD, in his capacity of leader of Fine Gael, adopted the submissions of Ms. O'Neill and also made some additional submissions.

7. Ms. O'Neill S.C. also submitted that the reliefs sought by the plaintiff, at paragraph

(v) and (vi), (namely an order staying any inauguration and a declaration that such stay does not affect the continuity of the Presidency) are now moot. I agree with that submission.

8. It is clear on the face of the plenary summons in the second set of proceedings, that the reliefs sought by the plaintiff in the second set of proceedings, are identical to those sought by the plaintiff in the first set of proceedings. The substance of the reliefs sought by the plaintiff at paragraphs (i), (iii) and (iv) of the plenary summons are declarations, in substance, that the directive issued by the Tánaiste on 6th September 2025, was unlawful and unconstitutional. I decided in my first judgment on precisely this issue and decided that this matter was not justiciable. It is clear therefore that the relief claimed at paragraphs (i), (iii) and (iv) of the plenary summons are identical to the relief claimed in the first set of proceedings.

9. The second relief sought by the plaintiff at paragraph (ii) is a declaration that the presidential election order of 2025 was vitiated and rendered void in consequence of such unlawful interference. The unlawful interference referred to is the directive of the Tánaiste issued on or about 6th September, 2025. It does not appear as if the plaintiff made this argument in precisely this form in the first set of proceedings. However, this issue was certainly considered, or touched upon, by the parties in the first set of proceedings. Thus, in my judgment in the first set of proceedings, delivered on 20th October, 2025, I stated at paragraph 21: "Section 6 of the 1993 Presidential Elections Act, mandates the making of a Presidential Election Order (a "PEO") which appoints the last day on which a presidential returning officer may receive nominations, and also sets a polling day."

10. At paragraph 22, I stated: "On 3rd September, 2025, the Minister for Housing, Local Government and Heritage, made the Presidential Election Order for the 2025 Presidential election, setting out the key dates in the election process. The nomination period commenced on 5th September, 2025, and closed on 24th September, 2025. Polling day was set for 24th October. 2025."

11. At paragraph 41 of my judgment, under the heading: "No allegations of alleged breaches of article 12.4 or the 1993 Act," I stated as follows: "The defendants submitted that the plaintiff could only bring a case if it were alleged that the defendants had breached the provisions of article 12.4 of the Constitution, or the procedures of the Presidential Elections Act. They submitted that the plaintiff in this case could not point to any such breaches, because all parties had complied, to the letter, with all the legal requirements for nomination of candidates to the Presidency. I agree with this submission."

12. In my view, this issue, as set out in paragraph (ii) of the plaintiff's plenary summons – namely a declaration that the presidential election order 2025 was vitiated and rendered void in consequence of such unlawful interference, because of the directive issued by the Tánaiste on 6th September, 2025 – was covered by the plaintiff's overarching submission, in the first case, that the presidential election was unconstitutional, and was rejected by me in that case.

13. However, insofar as it is a new argument, made by the plaintiff in the second case, and I do not accept that it is, it is a matter which is covered by the rule in Henderson v. Henderson, which provides that a party must make all arguments which he wishes to make in proceedings, and does not get a second bite at the cherry.

14. Thirdly, I would say that the plaintiff's argument that the presidential election order was unconstitutional, because of the first defendant's political directive, is not sustainable as a matter of law.

15. When I asked Mr. Byrne what was the difference between the first set of proceedings and the second set of proceedings, the only issue he was able to point to, was the relief set out at the plenary summons at paragraph (ii). However, in my view that argument was already made, albeit in modified form, in the first set of proceedings.

The current application to strike out

16. The plaintiff made an ex parte application to me, for short service of his notice of motion on 10th November, 2025 after the presidential election, which was held on 24th October, 2025. I reluctantly granted leave for short service to the plaintiff, because I was of the view that the plaintiff was, or might be, making a new point. I made it returnable to 8th December, 2025. The defendants then indicated that they wished to bring an application to strike out and I gave directions in that regard.

17. The defendants submitted to the Court that the plaintiff's claim should be struck out, on the grounds that it is res judicata and/or bound to fail and/or fails to disclose a reasonable cause of action and/or is an abuse of process. I agree with all of these submissions.

18. First, it is clear that this case is exactly the same case, which the plaintiff brought in his first set of proceedings. It consists of the same parties and the same issues and there is a

decision of this court, on the merits of the first case. It is clearly therefore res judicata.

19. Secondly, it is clear that an attempt to re-litigate the same issue twice is an abuse of process.

20. Thirdly, the current proceedings are bound to fail, because they raise identical issues to the issues raised in the first set of proceedings. I have already decided that these issues are not justiciable.

21. Fourthly, even if the plaintiff is making out a new case, and that is far from clear – indeed I am of the view that he is not – the relief which he is seeking at paragraph (ii) of the plenary summons, is not one which can be pursued in these proceedings, because it is not justiciable and also because the procedures for such challenges are set out in sections 55 and section 58 of the Presidential Elections Act, 1993.

Conclusion

22. For all of the above reasons, I am of the view that the plaintiff's proceedings must be struck out on the grounds that the matter is res judicata, that these proceedings are an abuse of process and that these proceedings are bound to fail. I will therefore strike out the proceedings and make an order in those terms.