IPT Costs: No Power Under the Existing Statutory Scheme, but Reserved Costs Decisions Are Appealable

1. Introduction

This judgment resolves an important question about the remedial powers of the Investigatory Powers Tribunal (“IPT”): can it require a public authority to reimburse legal costs wasted through its conduct of proceedings? The Court of Appeal held that neither the Regulation of Investigatory Powers Act 2000 (“RIPA”) nor the existing tribunal rules confers that power. Broad statutory language authorising compensation and other orders does not permit the IPT to construct its own costs regime.

The court also established a distinct procedural principle. Where costs have been expressly reserved, a later decision refusing them forms part of the tribunal’s determination of the proceedings and is appealable under section 67A of RIPA. The substantive judgment does not necessarily mark the end of that determination.

Finally, the judgment confirms the boundary between costs and human-rights compensation. Litigation conduct may justify increased compensation where it prolongs or aggravates the underlying injury. It does not, however, permit an otherwise unavailable costs award to be relabelled as damages.

2. Background and the Issues Before the Court

Investigative journalism and the underlying proceedings

The appellants were journalists who produced No Stone Unturned, a documentary concerning the murder of six unarmed men in Loughinisland in 1994. The IPT described the film as a serious investigative documentary addressing an obvious matter of public interest.

After the Police Ombudsman for Northern Ireland became aware that the film referred to two undisclosed documents, the Police Service of Northern Ireland (“PSNI”) commissioned Durham Constabulary to investigate their apparent disclosure. Search warrants were subsequently executed at the journalists’ homes and business premises, and they were arrested on suspicion of theft and an offence under the Official Secrets Act 1989.

The Northern Ireland Divisional Court later held that the search warrants were unlawful. It criticised the fairness of the without-notice warrant proceedings and found no overriding public-interest requirement capable of justifying interference with the protection of journalistic sources. That earlier decision supplied background to the IPT proceedings; it was not itself under appeal here.

In June 2019, the journalists brought proceedings under section 7(1)(a) of the Human Rights Act 1998 and made complaints to the IPT. They believed that the searches might not have been the only attempts to identify their confidential sources.

The substantive IPT decision and the costs application

In its substantive judgment of 17 December 2024, [2024] UKIPTrib 8, the IPT found unlawful conduct, quashed a Directed Surveillance Authorisation and awarded each appellant £4,000. It considered that damages were unnecessary to afford just satisfaction for some other aspects of the case.

The proceedings had been affected by late and inadequate disclosure by the PSNI. Hearings listed in February and May 2024 proved ineffective, and the tribunal reserved costs on both occasions. It reserved them again when delivering its substantive judgment.

The journalists did not seek all their litigation costs, including those of the substantive hearing eventually held in October 2024. They sought the expenditure wasted on the two ineffective hearings, and sought it only against the PSNI.

A specially constituted five-member IPT panel held that the tribunal lacked jurisdiction to award costs. It also declined to increase the compensation awards as an alternative. The appeal therefore raised three questions:

1. Was the costs ruling appealable?
2. Did RIPA confer a power to award costs?
3. Should the compensation awards have been increased to reflect the appellants’ costs?

3. Summary of the Judgment

• The appeal was competent. Because costs had been reserved, the later costs ruling remained part of the determination of the complaints for the purposes of sections 67A and 68(4) of RIPA.
• The IPT had no costs jurisdiction under the existing scheme. It possessed no inherent costs power, and no sufficient power could be found in RIPA or the Investigatory Powers Tribunal Rules 2018.
• The general remedial wording did not authorise costs. Section 67(7) concerned substantive remedies, read in its statutory context.
• A bespoke costs regime requires legislative action. The Secretary of State could introduce rules, but the tribunal could not choose and create the governing policy itself.
• Compensation remained distinct from reimbursement of legal expenses. Aggravated injury caused by litigation conduct could affect just satisfaction, but the IPT had committed no legal error in declining to increase these awards.

Lord Justice Bean delivered the principal judgment. Lord Justices Edis and Lewis agreed.

4. The Statutory Framework

The IPT is a statutory tribunal established under section 65 of RIPA. Its jurisdiction includes specified Human Rights Act proceedings and complaints concerning investigatory conduct. Its powers must therefore be located in the legislation and valid rules made under it.

Neither RIPA nor the 2018 Rules expressly addresses costs. Although rule 14(3) requires an opportunity to make representations before certain orders affecting a respondent, that procedural safeguard does not itself establish a costs jurisdiction.

5. Why the Costs Decision Was Appealable

The IPT had refused permission to appeal partly because it considered its costs ruling outside the categories of appealable decisions. On its approach, the relevant determination had already occurred in December 2024, while the subsequent ruling was neither a qualifying preliminary decision nor anything other than procedural.

The Court of Appeal rejected the premise that the proceedings had been completely determined when the substantive judgment was delivered. The tribunal had expressly reserved costs three times. Its later decision disposing of that outstanding issue was therefore part of its determination of the complaints.

Lord Justice Bean compared the position with a court delivering judgment and immediately hearing an oral costs application. Separating the two decisions in time did not change their essential relationship. The IPT had not become functus officio: it had not finished its work on the case.

The appeal accordingly fell within section 67A through section 68(4). The court did not need to establish an alternative route under section 68(4C), nor to reconstitute itself as a Divisional Court to entertain judicial review. A precautionary judicial review claim had been issued, but that route proved unnecessary.

The principle is tied to the procedural circumstances. The judgment does not declare every procedural ruling of the IPT appealable. It establishes that a reserved costs ruling forming part of the final disposal of proceedings is not excluded merely because the merits were decided earlier.

6. Precedents Cited and Their Significance

W v Public Authority (IPT/09/134/C)

This case concerned an application by a respondent for costs after a complainant withdrew a complaint. The IPT recognised that, as a statutory body, it had no inherent costs jurisdiction. It also observed that section 67(7) operated “on determining” proceedings, whereas withdrawal had prevented such a determination.

The Court of Appeal treated the decision as being of limited assistance. Its actual conclusion was deliberately confined to costs against a complainant following withdrawal. It had not definitively resolved whether costs could ever be awarded to a successful complainant. This qualification matters because later IPT decisions had sometimes described it in broader terms.

Chatwani v National Crime Agency [2015] UKIPTrib 15_84_88-CH

The initial judgment rejected costs both as compensation and as an ordinary costs award. The IPT stated that legal costs were not a recognised head of damages and stressed the intended costs-free nature of its jurisdiction.

However, a later order required the respondent to pay £10,000 for costs resulting from persistent breaches of a tribunal order. The circumstances were described as wholly exceptional, but no explanatory judgment establishing the legal basis could be identified.

The resulting inconsistency was important. The exceptional order could not, without supporting reasoning, establish a reliable source of statutory power. Serious procedural misconduct might demonstrate the desirability of a costs jurisdiction, but it could not supply the missing jurisdiction itself.

Dias v Chief Constable of Cleveland Police

In this case, the respondent had resisted disclosure in circumstances criticised as apparently calculated to encourage a false factual conclusion. The IPT nevertheless emphasised that its jurisdiction was essentially costs-free.

The explanation was both practical and constitutional. Applicants often cannot know the strength of their cases because the relevant information is held by public authorities and may remain secret. Exposure to adverse costs could deter complaints and undermine the tribunal’s oversight function.

The decision also distinguished costs from compensation. Where a respondent’s handling of proceedings prolongs or aggravates the injury caused by unlawful conduct, that may make compensation necessary or justify a somewhat larger award. The resulting sum is not calculated as reimbursement of the applicant’s legal expenditure.

This reasoning directly influenced the Court of Appeal. Lord Justice Bean expressly endorsed it when dismissing the second ground of appeal.

Wilson v Commissioner of Police of the Metropolis [2019] 1 Costs LR 11

The IPT acknowledged the lack of clear authority establishing a costs jurisdiction and the unexplained exceptional order in Chatwani v National Crime Agency. It left the jurisdictional question open, assuming for the purpose of the particular application that costs might be available in rare and highly unusual cases.

The present judgment resolves that uncertainty. An assumption made to dispose of an earlier application could not establish a statutory power that the governing legislation did not confer.

C7 v Secretary of State for the Home Department [2023] EWCA Civ 265; [2023] KB 317

This Court of Appeal authority concerned the Special Immigration Appeals Commission (“SIAC”) and a citizenship-deprivation appeal under section 2B of the Special Immigration Appeals Commission Act 1997. It held that SIAC had neither an inherent nor an implied power to award costs in that setting.

Elisabeth Laing LJ’s reasoning supplied a useful analogy. An implied costs power must be necessary, not merely useful, and must be compatible with the statutory scheme. Where legislation entrusts procedural rule-making to a designated authority, the tribunal cannot necessarily fill the absence of a costs rule by creating the power itself.

The comparison supports the IPT decision, but its limits should be retained: C7 v Secretary of State for the Home Department expressly did not determine SIAC’s powers in statutory reviews under sections 2C–2F.

Global Santa Fe Drilling (North Sea) Ltd v Lord Advocate [2009] CSIH 43; [2009] SC 575

The appellants relied on this Scottish authority, which upheld a sheriff’s power to award expenses for vexatious conduct during a fatal accident inquiry.

The Court of Appeal agreed with the IPT that the case was distinguishable. It depended on the sheriff’s position within the Scottish courts and the common-law principles governing expenses, including in administrative or ministerial processes. It did not establish an equivalent inherent power in a statutory tribunal such as the IPT.

Associated Society of Locomotive Engineers and Firemen (ASLEF) v United Kingdom (2007) 45 EHRR 34

This Strasbourg decision was introduced late in the appeal. A trade union had successfully complained that domestic proceedings concerning its expulsion of a member violated Article 11. The European Court of Human Rights awarded domestic legal costs under Article 41, notwithstanding that the domestic jurisdiction did not ordinarily make costs follow the event.

The Strasbourg court treated costs necessarily and reasonably incurred to prevent or redress a Convention violation as recoverable financial loss. Its quoted reasoning referred to:

• Nikolova v. Bulgaria, concerning the requirement that recoverable expenses be actually and necessarily incurred and reasonable in amount;
• Smith and Grady v. the United Kingdom (just satisfaction), supporting the same general standard; and
• I.J.L., G.M.R. and A.K.P. v. the United Kingdom (Article 41), concerning domestic costs incurred to prevent or remedy a Convention breach.

Those authorities appeared through the quoted Strasbourg judgment; they were not separately analysed as sources of domestic costs jurisdiction. Lord Justice Bean described the ASLEF decision as apparently an outlier and preferred the approach in Dias v Chief Constable of Cleveland Police. Importantly, the appellants did not contend that ASLEF required domestic tribunals lacking statutory costs powers to award costs whenever a Convention violation was established.

The unnamed SIAC decision: [2025] EWHC 2019 (Admin)

This decision appeared in the reasons for directing a full hearing because the IPT’s costs ruling had influenced subsequent consideration of SIAC’s powers. It demonstrated the wider importance of the issue. The Court of Appeal did not separately analyse its reasoning, so it should not be treated as an additional substantive foundation for the result.

7. Analysis of the Court’s Legal Reasoning

Broad remedial language must be read in context

The appellants relied principally on section 67(7), which permits “any such award of compensation or other order as they think fit”. Read alone, those words are expansive. The court nevertheless examined the accompanying examples: they concern substantive remedies addressing unlawful investigatory conduct, not allocation of litigation expenditure.

The list was non-exhaustive, but its character still informed the meaning of the general words. Parliament could readily have included costs and had not done so. Nor did the procedural and rule-making provisions establish a present costs power.

The decision is therefore not simply an equation of statutory silence with prohibition. It is a contextual conclusion about this particular statutory scheme, its allocation of responsibilities, and the nature of the orders expressly contemplated.

A costs regime involves policy choices the tribunal cannot make for itself

The difficulty extended beyond identifying words broad enough to accommodate a costs order. The proposed jurisdiction lacked defined boundaries:

• Would it operate against both parties or only public-authority respondents?
• Would success ordinarily carry costs?
• Would unreasonable conduct be required?
• What protection would applicants receive given their limited access to evidence?

The appellants proposed a restricted approach protecting applicants and targeting unreasonable conduct by public authorities. The court recognised the policy arguments but held that the IPT could not turn them into a legislative scheme.

Employment tribunal rules illustrated the point. Those tribunals generally operate without routine costs awards, but expressly defined exceptions address unreasonable conduct, hopeless claims and certain late adjournments. A comparable IPT regime could be introduced through rules; it could not be judicially invented.

Interim powers do not resolve the difficulty

The IPT had also rejected reliance on section 67(6). An interim order pending final determination is different from a final order about costs made during proceedings. Describing a costs application as arising at an interim stage does not establish the underlying power to decide it.

Compensation is not a substitute costs jurisdiction

The court preserved a genuine, but narrower, role for litigation conduct in assessing compensation. Conduct that prolongs or aggravates the injury may affect whether a monetary award is required and its amount. That is different from measuring an award by lawyers’ fees or wasted hearing expenditure.

The IPT had already assessed the appropriate compensation and concluded that an increase was not just and appropriate. Although reconsideration was not procedurally barred, the Court of Appeal found no error of law in that substantive assessment.

The appeal therefore did not fail because compensation could never be revisited, or because litigation conduct was invariably irrelevant. It failed because the appellants had not demonstrated a legal error in the tribunal’s refusal to increase these particular awards.

8. Impact and Limits of the Decision

For applicants and public authorities

The judgment removes uncertainty created by earlier IPT decisions. Under the existing statutory scheme, applicants cannot obtain costs merely by establishing exceptional or unreasonable conduct. Equally, the IPT cannot impose adverse costs on complainants under a jurisdiction that does not exist.

Public authorities remain obliged to comply with disclosure requirements and tribunal orders. The absence of costs jurisdiction does not excuse non-compliance. However, it leaves a practical remedial gap where misconduct causes substantial legal expenditure without aggravating a compensable injury.

For appeals

Express reservation of an outstanding issue matters. Where costs remain unresolved, a later ruling may complete the determination and attract the statutory appeal route. Practitioners should nevertheless distinguish that situation from an attempt to appeal a freestanding procedural decision.

The protective costs order made for this appeal under CPR 52.19 also belonged to the appellate proceedings. It did not establish or imply a corresponding costs power in the IPT.

For legislative reform

Both the IPT and the Court of Appeal recognised the force of providing a targeted costs jurisdiction, particularly for expenditure wasted through persistent non-compliance. The decision leaves that reform to the Secretary of State through rules, or to Parliament.

Any reform would need to balance procedural accountability against the risk of deterring legitimate surveillance complaints. The judgment identifies that policy task without prescribing its outcome.

For other statutory tribunals

The broader lesson is methodological: a tribunal’s costs powers depend on its own statutory architecture. The desirability of a remedy, or its availability in another forum, cannot replace legal authority. The judgment does not establish that every statutory tribunal lacks an implied costs power; it determines that no such power exists within the IPT’s present scheme.

9. Complex Concepts Simplified

Jurisdiction

The legal authority to make a particular decision. Before deciding whether costs are deserved, the IPT must have authority to award them.

Inherent and implied powers

An inherent power arises from an institution’s legal status. An implied power is derived from legislation even though not stated expressly. The IPT had neither a relevant inherent power nor an implied costs power under this scheme.

Costs follow the event

The usual civil-litigation principle that the unsuccessful party pays the successful party’s recoverable costs. It does not automatically apply in tribunals.

Wasted expenditure

Here, legal expenses incurred for ineffective hearings. The application was against the PSNI, not a technical wasted-costs application against a legal representative.

Just satisfaction

A remedy sufficient to address a Convention violation. A finding of unlawfulness may provide substantial satisfaction; money is not automatically required, and does not necessarily reimburse litigation expenses.

Functus officio

Having completed the decision-making task. Because costs remained reserved, the IPT had not yet completed all its work on the case.

Appeal and judicial review

An appeal proceeds through an authorised appellate route. Judicial review supervises the legality of public decision-making. The statutory appeal route was available here, making the proposed alternative unnecessary.

10. Conclusion

The judgment establishes a clear separation between appellate access, costs jurisdiction and compensation. A reserved costs ruling can be appealed as part of the IPT’s determination, but the existing legislation does not empower the tribunal to award costs. Compensation may reflect aggravated injury, not serve as disguised reimbursement of legal expenses.

The resulting gap is acknowledged rather than judicially repaired. Any targeted regime for unreasonable conduct must be created through legislation or authorised rules, with clear safeguards for access to the IPT.