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The wages of sin

The wages of sin

Have new costs orders opened the Gates of Hell?



Costs follow the event – though there have been exceptions, specifically in criminal cases. Has the amendment of order 36 of the Rules of the District Court opened the Gates of Hell? Matthew Holmes surveys the Ninth Circle.

Costs follow the event. Traditionally, this has been the rule in almost every area of law. If a case is brought, the loser has to pay the winner’s costs, as the winner should not be penalised for upholding their legal rights.

As one of the most important rules, it is subject to a number of exceptions – perhaps the biggest are found in criminal law. A defendant in a criminal case could not seek their costs against the prosecution even if they were acquitted. 

The wages of sin

The wages of sin

In People (Attorney General) v Bell (1969), the Supreme Court noted that this rule was centuries old. And the rules have now changed, particularly recently for District Court cases.

Order 36 of the Rules of the District Court was amended on 29 September 2020 by SI 496/2020 (District Court (Order 36) Rules 2020).

It now reads: “Where the court makes an order in any case of summary jurisdiction (including an order to ‘strike out’ for want of jurisdiction), it may make an order in accordance with law ordering any party to the proceedings to pay to the other party such costs and witnesses’ expenses as it shall think fit to award.”

Previously this rule had read: “Where the court makes an order in any case of summary jurisdiction (including an order to ‘strike out’ for want of jurisdiction), it shall have power to order any party to the proceedings other than the Director of Public Prosecutions, or a member of the Garda Síochána acting in discharge of his or her duties as a police officer [emphasis added], to pay to the other party such costs and witnesses’ expenses as it shall think fit to award.”

Junipers and cedars gloat

The changes to this rule were introduced following the 2019 decision of the Court of Appeal in DPP v District Judge McGrath. Here, the accused was alleged to have assaulted a wildlife ranger, and alleged in turn that he, in fact, had been assaulted by the ranger.

The case was struck out, although the accused, unusually, objected to the DPP’s request to withdraw the case because he wanted to clear his name. He was awarded his costs against the DPP. This award of costs was quashed by the High Court, but was upheld by the Court of Appeal.

The Court of Appeal held that exempting the DPP and members of An Garda Síochána, acting in the course of their duty, from having costs orders made against them was ultra vires the delegated power granted to the District Court Rules Committee.

The court noted that, in every version of the District Court Rules that had existed, there had been a prohibition on costs against the DPP, the Attorney General (who prosecuted prior to the DPP), and against gardaí acting in the course of their duty.

Mr Justice Edwards accepted that there may be excellent policy reasons why the DPP and members of An Garda Síochána acting in the course of their duty should be exempted from having costs orders made against them in summary criminal proceedings. However, he was of the view that such a policy could only lawfully be implemented by means of
primary legislation.

Limbo

Despite the fact that this statutory instrument was introduced, it is still open to the Government at any stage to introduce legislation to bring the law back to its prior state. Under section 8(2) of the Garda Síochána Act 2005, gardaí prosecute in the name of the DPP. This means that it is unlikely that costs will be awarded against individual gardaí directly, despite the rules allowing for this.

Instead, it is likely that costs will be awarded against the DPP. It may be that costs will be awarded against individual gardaí if very serious allegations are made against them during the course of a case, which are upheld by the court. In Bell (the first-ever case where costs were awarded to the defence here), it was alleged that the gardaí had threatened the defendants into making false confessions.

At the moment, there is no scale for costs in criminal cases, as there is for civil District Court cases. Further, there is nothing in order 36 or the legal-aid rules preventing an award of costs against a defendant in criminal cases.

These awards are sometimes sought in non-garda prosecutions brought by statutory bodies, which are most frequently heard in Court 8 in the Four Courts. In many of these prosecutions, there are statutory provisions for the payment of the prosecution’s costs by the defendant.

On rare occasion, the costs in these cases can be higher than any financial penalty imposed. It would, therefore, appear that costs in criminal cases would be full costs, not yet limited by any scale.

A place for owls

In Foley v Clifford (1946), it was held that a costs order in a criminal case could not be appealed to the Circuit Court. The case was dismissed, but an order for costs was made against the accused.

He could not appeal, as this was not a “penal or other sum” within the meaning of section 18 of the Courts of Justice Act 1928. However, this is an old Circuit Court decision and not a binding precedent.

The award of costs against prosecutors has been allowed for some time in the circuit and superior courts, and the law here might be used as guidance in summary cases. Privately retained defence teams in these cases are significantly rarer than they would be in the District Court, but are not unheard of.

The Court of Appeal, in DPP v T O’D (No 2) (2017), noted that: “Applications for costs by successful defendants in criminal cases are relatively rare because most are processed with the benefit of State-provided legal aid.”

Guidance was given as to costs by the Court of Criminal Appeal in DPP v Bourke Waste Removal Ltd (2012). There, it was held that the costs of an unsuccessful Central Criminal Court prosecution for breaches of the Competition Acts could be awarded against the DPP. The defendants had been acquitted on all counts by the jury.

The trial judge awarded them their costs, and this was appealed by the DPP pursuant to section 24 of the Criminal Justice Act 2006. The court referred to what it described as the “helpful judgment” of Charleton J in Director of Public Prosecutions v Kelly (2007), as well as a judgment of Cooke J in Director of Public Prosecutions v McNicholas (2011). In Kelly, Charleton J had provided ten questions to be relied on in deciding on costs.

In Bourke, the court reduced this to four questions:

  1. Was the prosecution warranted, in regard to the matters set forth in the book of evidence, what actually transpired at the trial, and what responses were made by or on behalf of the defendants prior to the trial?
  2. Had the prosecution conducted themselves unfairly or improperly in relation to the defendants, by oppressive questioning or otherwise, and had the prosecution been pursued with reasonable diligence and expedition?
  3. What was the outcome of the prosecution? If an acquittal, was this on foot of a direction granted by the trial judge and, if so, on what basis?
  4. How had the defendants met the proceedings, both prior to and at trial, and had they associated themselves with undesirable elements, or otherwise contributed to drawing suspicion on themselves?

Purgatory

As well as providing these four questions, the Court of Appeal laid out the following general principles it would rely on when dealing with costs and cost appeals:

  1. That the court would not interfere with the exercise of a discretionary judgment of a trial judge in relation to costs, unless it was satisfied that such exercise was substantially flawed, or was such that, in the interests of justice, it ought to be set aside.
  2. When the trial court exercises its discretion in criminal cases to award costs, that discretion is not coupled with any specific presumption under the Rules of the Superior Courts 1986 that costs should follow the event.
  3. That, in exercising the court’s costs jurisdiction, the actual result of the prosecution was more than a purely neutral factor. The actual result was not determinative of orders for costs following the event, but was the starting point of the court’s consideration on costs, and was to be considered in conjunction with other relevant circumstances.

Final judgement

Of these principles, the latter two are the most important in summary cases. One helpful case is T O’D. There, the accused had been convicted of the historical sexual assault of a schoolboy. The conviction was quashed due to an error in the trial judge’s ruling, and permission was refused for a retrial.

The Court of Appeal applied the four questions from Bourke, and awarded the defendant his costs. It found that:

  1. The prosecution was warranted,
  2. The case against the appellant was one of very significant antiquity,
  3. While the outcome of the prosecution in the Circuit Criminal Court was a verdict of guilty, that verdict was quashed by order of the court, making it appropriate that the court approach the application for costs as if the appellant had been acquitted, having regard to the reasons for his conviction appeal being allowed, and
  4. There could be no criticism as to the manner in which the appellant has met the proceedings.

For further discussion of Bourke, see Dowling v Bord Altranais agus Cnaimhseachais na hÉireann (2017).

The majority of criminal cases where someone will pay for their own legal representation are heard in the District Court. This may be because the case is too minor, so that legal aid wasn’t awarded; that the client’s means are such that they can afford their own solicitor; or that they want a specialist who doesn’t work for legal aid.

This change may have greater ramifications, meaning that some weaker cases are not prosecuted for fear of costs implications. On the other hand, some may be reluctant to award costs; or primary legislation may be brought in. Time will tell.

LOOK IT UP

Cases:

Legislation:

Matthew Holmes is a Dublin-based barrister.

Read and print a PDF of this article here.