The Supreme Court has ruled that Kevin Tracey is entitled to recover outlay and expenses from the Director of Public Prosecutions (DPP) following his successful appeal against an order committing him to prison for contempt. He will not receive a sum for his own time and effort, and the amount payable remains to be agreed or adjudicated.
The ruling, delivered by Chief Justice Frank Clarke on 25 June 2021, addressed the costs of the proceedings. The court had allowed Mr Tracey’s appeal in an earlier judgment, Tracey v McCarthy [2019] IESC 14. The current ruling dealt with the costs that followed that appeal; it did not revisit the earlier decision on contempt.
The DPP conceded that Mr Tracey should receive expenses and outlay, adopting arguments made by State respondents in a related case, Tracey v McDowell, heard earlier that week. Mr Tracey argued that his award should also cover his time and effort. The court said it saw no reason to treat the two proceedings differently and made the same form of order against the DPP as it had made against the State respondents in McDowell, except that there was no estimate of the appropriate amount in this case.
The court said the recoverable amount would need to be adjudicated if the parties did not reach agreement. It did not specify a sum.
The judgment also addressed Mr Tracey’s decision to represent himself. The court said he had been offered a place in an arrangement under which solicitors and barristers could provide free assistance to unrepresented people granted leave to appeal to the Supreme Court. It said Mr Tracey declined the offer and chose to represent himself, which was his right. The court considered that choice an additional factor in assessing his claim for his time and effort, noting that lawyers could have done much of the appeal work without cost to him.
The court stated that the arrangement had been used by other unrepresented parties whose appeals were successfully prosecuted. An amicus curiae had been joined on the basis that costs would be awarded neither to nor against it.