The Supreme Court has dismissed an appeal by the Director of Public Prosecutions over an order requiring the DPP to pay costs after two assault prosecutions were withdrawn. The court held that the District Court rule preventing costs orders against the DPP or Gardaí prosecuting officially was beyond the rule-making authority’s powers.
The case followed an altercation on 28 April 2009 at Cloonart near Roosky, County Roscommon, involving wildlife ranger John Matthews and Gerard Gearty. Both were prosecuted for assault. After a hearing began on 31 July 2009 and included cross-examination of Matthews, the case was adjourned.
Before it resumed on 16 September 2009, the parties were told the DPP had directed that both prosecutions be withdrawn. Matthews’s solicitor asked the District Court either to proceed or to adjourn so the DPP could provide reasons. The District Judge struck out the prosecutions and ordered the DPP to pay costs to both men.
The DPP sought judicial review, arguing that Order 36, rule 1 of the District Court Rules 1997 barred such an order. The High Court quashed the costs order. The Court of Appeal allowed Matthews’s appeal, and the DPP then appealed to the Supreme Court.
Delivering judgment on 21 September 2021, Mr Justice O’Donnell concluded that Order 36 made a broad policy choice: it exempted specified official prosecutors from costs orders in every case, regardless of circumstances, while preventing successful defendants from obtaining costs. That choice went beyond rules about court practice and procedure and was for the Oireachtas, or for courts exercising their discretion in individual cases.
The court held the exclusion of the DPP and Gardaí prosecuting officially to be ultra vires. It dismissed the DPP’s appeal, reaching the same result as the Court of Appeal, though for different reasons. The judgment did not decide whether the District Judge had discretion to award costs in this case or whether that discretion was properly exercised; the parties had agreed that issue was not before the court. Nor did the court set out detailed criteria for future costs decisions. It noted that official prosecutors have a different social function from ordinary litigants, and that a prosecution ending without conviction does not by itself mean it should not have been brought.