Appellant awarded 30% costs for securing appeal jurisdiction despite losing substantive DAR access claim.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Supreme Court Record No.: S:AP:IE:2024:000094

High Court Record No.: HCA 2024 55

[2025] IESC 52

Dunne J. Woulfe J. Hogan J. Collins J. Donnelly J.

Between/

GORDON SMITH

Appellant

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

RULING of the Court delivered on the 28th day of November 2025

1. On the 30th day of October 2025, this Court gave judgment on an appeal refusing the appellant additional access to certain portions of the Digital Audio Recording (“the DAR”) of criminal proceedings in which he was not involved. The appellant, a litigant in person at earlier stages of the proceedings, availed of the ad hoc Supreme Court Legal Assistance/Legal Representation Scheme before this Court. His solicitor and counsel now seek their costs. That application is opposed by the respondent who says that there should be no order for costs. Open correspondence has passed between the parties and will be addressed further below.

2. In the substantive decision, this Court found, contrary to the view of the High Court, that the High Court did have jurisdiction to hear an appeal from the Circuit Court where that Court had been asked for access to the DAR of Circuit Court criminal proceedings by a third party to those proceedings. This Court set out general principles for adjudicating on applications for access to the DAR. The relationship between the constitutional principle that justice is to be administered in public (save in limited circumstances provided by law) and the regulation of access to the DAR within the sphere of the right of the courts to control their own processes as acknowledged in legislation and in the Rules of Court was addressed. The Court observed that access to the DAR is somewhat different from those open justice considerations which underpin Article 34.1 of the Constitution. Procedurally, an applicant is required to demonstrate an entitlement to such access by evidence on affidavit and the overriding consideration is whether such access is necessary in the interests of justice.

3. It was held however that the appellant’s case fell far short of demonstrating the relevance of, or necessity for, access to the DAR. In circumstances where access to some portions of the DAR had already been granted by the Circuit Court on the basis of undertakings from the appellant and third parties, the Court held that it would be counterproductive to rescind that order which may have the effect of jeopardising the strength of that undertaking. In those circumstances, the Court: a. Allowed the appeal from the High Court. b. Refused the appellant access to any further portion of the DAR. c. Affirmed the order of the Circuit Court. d. Directed that the respondent makes available to one witness that portion of the transcript provided to the appellant and explain that it was released to the appellant on foot of his application for the DAR for intended use in the injunction proceedings.

4. The appellant seeks his costs of this appeal primarily on the basis that: a. He won the “event”, ie he was entitled to an appeal to the High Court. b. He also points to fact that there was little between the parties on the substantive principles and that this Court set out authoritative principles of law that will enable courts to readily determine applications for the DAR thereby reducing costs. c. Important legal issues of general public importance were considered by this Court. The appellant also points to the fact that the Court pointed him in the direction of the ad hoc scheme.

5. The respondent submits that: a. She won the event, ie no additional access to the DAR was granted. b. She conceded the jurisdictional issue at the earliest opportunity. c. The general principles were part of the Attorney General’s submissions. d. Under Little v Chief Appeals Officer [2024] IESC 53 (“Little”), no order for costs ought to be made as this was not a constitutional case of conspicuous novelty, it was not a case of far-reaching importance in an area of law with general application and the claimant did not win a significant issue.

6. Although the respondent maintained that the appellant was not entitled to any costs, she drew the attention of the Court to open correspondence sent to the appellant’s solicitors. Noting the applicability of the Supreme Court Legal Assistance/Legal Representation Scheme and that the judgment of the Court had noted the lawyers’ helpful submissions, she made an ex gratia offer to pay costs up to the amount that would be recoverable under the Legal Aid Custody Issues Scheme, ie counsel would be paid on the same basis as counsel for the DPP and that the solicitor would be given costs in the manner which solicitors are paid under that scheme. The respondent submitted that they would argue for the costs of any costs hearing should their open offer not be accepted.

7. In reply, the appellant rejected that offer on the basis that it was not a scheme appropriate to the work at issue here, that the fees were too low (and may reflect that counsel for the DPP are often retained on a repeat basis) and it did not reflect the work done. The appellant said however that they were prepared to reduce their claim to full costs to a claim for 75% of the costs. The appellant’s submissions were silent on the question of a costs hearing.

8. The Attorney General, who appeared at the invitation of the Court, will bear his own fees.

Decision

9. Reference has been made to the Supreme Court Legal Assistance/Legal Representation Scheme which came into effect in 2016. This Scheme provides for the establishment by the Bar Council and Law Society of Ireland of a panel of barristers and solicitors who have indicated their willingness to act, if requested by the Supreme Court, for unrepresented persons who are parties to appeals. The Scheme has worked well to date. Importantly, the legal representation is at no cost to the person on whose behalf the legal representatives act. The Scheme makes clear however that the lawyers are entitled to apply for costs at the

conclusion of the appeal and that this Court “will determine any such application on the basis of the existing legal principles applicable to costs”.

10. Although this Court has benefitted from the advocacy on behalf of the appellant by the legal representatives who were prepared to act in this appeal without any security in respect of the payment of their costs that fact cannot alter the principles which govern this decision on costs. The general principles must apply.

11. The first principle is that, even within the new statutory framework, costs remain at the discretion of the Court. As accepted by the parties, the starting point is that in respect of an unsuccessful claimant in public interest proceedings. As set out in Little where this Court had determined that proceedings disclose a matter of general public importance, the Court should exercise its discretion not to award costs against that claimant. The first issue here however is whether the claimant was successful.

12. It is important to recall that the appellant’s original application was for the DAR of the evidence of three witnesses. In this Court it was decided that he was not entitled to any portion of the DAR. It is true to say however that on a particular aspect arising in his appeal to this Court he was successful; the High Court ought to have heard and determined his appeal. To that extent he was the beneficiary of an appeal which had otherwise been denied to him. What is striking about that “issue” is that the respondent had agreed at an early stage that the application was a civil matter for which the High Court had jurisdiction under s. 37 of the Courts of Justice Act, 1936 and the appellant did not object to this Court deciding his appeal.

13. In answer to the respondent’s submission that she won “the event”, similar to this Court’s ruling in ESB v Good [2025] IESC 40, the Court does not consider it to be necessary to decide the following issues: “(a) when a party has been ‘entirely successful’ as that term is used in the LSRA, (b) the criteria by reference to which it allocates costs where no party has been ‘entirely successful’ and, (c) if – as some of the cases have suggested – those criteria are to be fixed by reference to ‘issues’, what exactly an ‘issue’ is for that purpose.”

14. It is sufficient to say that we accept that the appellant ought to be awarded a portion of his costs to reflect the success in having access to an appeal to which he was otherwise denied.

15. In respect however of the appellant’s claim to be entitled to a full award of costs we do not accept that this case comes within the criteria for such an award as set out in Little at paragraphs [62] and [63]. The issues in this case were not of the fundamental or novel type identified therein, the decision was not of far-reaching importance in an area of law with general application, and it was not an unexplored or obscure area. The substantive judgment brought together many strands that were apparent in other decisions including those of this Court.

16. In circumstances where the only ‘success’ was in having an appeal and to the extent that the judgment clarified the position as regards the nature of applications for DAR in situations such as the present it is appropriate to award the appellant 30% of his costs of the substantive appeal. It is not appropriate for the Court to measure costs by reference to a specific amount or by analogy with the Legal Aid Custody Issues Scheme. However, in circumstances where neither party has achieved what was sought in respect of this final costs order, the most appropriate order in respect of the costs of this application for costs is to make no order in respect of the making of this application.