The Court of Appeal has allowed an appeal concerning the District Court’s power to award costs against the Director of Public Prosecutions (DPP), ruling that a court rule could not restrict that power without primary legislation.
The appeal arose after two people were prosecuted summarily on charges of assaulting each other. Their joint trial began in July 2009 but did not resume in September after the DPP instructed that both cases be withdrawn. The District Judge struck out the charges and, on 16 September 2009, awarded costs to both notice parties for the proceedings they had faced up to their withdrawal.
One of them, a Wildlife Ranger with the National Parks and Wildlife Service, had complained to gardaí that he was assaulted while carrying out an investigation at Cloonart, Co. Leitrim, on 28 April 2008. The other made a counter-allegation. The judgment records that both retained the presumption of innocence; the appeal did not determine the assault allegations.
The DPP sought judicial review, arguing that Order 36, rule 1 of the District Court Rules 1997 barred costs awards against the DPP and gardaí acting in their official duties. The High Court granted an order of certiorari quashing the District Judge’s costs order. The appellant challenged that decision, arguing that the District Court’s general statutory costs power could not be curtailed by secondary legislation. The DPP also cross-appealed against the High Court’s award to the appellant of 50% of the costs of the judicial review proceedings.
The Court of Appeal held that the District Court’s general power to award costs came from section 59 of the Dublin Police Act 1842. While rules could regulate the procedure for using that power, removing the DPP and serving gardaí from potential liability restricted the court’s substantive jurisdiction. The court said that change required primary legislation and could not be made through Order 36, rule 1.
The court rejected the appellant’s separate argument that Order 38, rule 1(4), which allows costs in certain cases where a complaint discloses no offence or neither side appears, conflicted with Order 36. It said the provisions could be reconciled because private prosecutions by common informers remained possible.
The appeal was allowed and the orders made by the High Court were vacated. The Court of Appeal left issues of costs in the proceedings over for further argument. It did not itself reinstate or re-make the District Judge’s costs order.