No Order as to Costs in a Successful Case Stated Appeal Where the Determinative Jurisdictional Point Was Not Canvassed Below

Introduction

This costs judgment of the High Court (Bradley J.) in DPP v J.P. (No. 2) (Costs) [2026] IEHC 396 concerns the proper application of the modern Irish costs regime—principally s. 169(1) of the Legal Services Regulation Act 2015 and the recast Order 99, rr. 2–3 of the Rules of the Superior Courts 1986—to an appeal by way of case stated arising from the court’s earlier decision in DPP v JP [2026] IEHC 350 (the “principal judgment”).

Although the Director of Public Prosecutions (the appellant) succeeded on the legal question in the principal judgment, the Court declined to award costs against the respondent. The decision illustrates how the statutory “unless the court orders otherwise” discretion can operate to displace the default rule that costs follow the event, particularly where the litigation was shaped by points not raised at first instance and where responsibility for the appeal’s necessity is not straightforward.

Summary of the Judgment

  • The Court reiterated that the default position under s. 169(1) of the 2015 Act and O. 99 is that costs follow the event where a party is entirely successful, subject to the court ordering otherwise.
  • The DPP sought costs on the basis of success in the principal judgment.
  • The respondent argued for costs (or alternatively no order), contending that most arguments were resolved in his favour and that the appeal could have been avoided had a “poor box” contribution point been addressed before the District Court.
  • Holding: The Court made no order as to costs, invoking the discretion preserved by the phrase “unless the court orders otherwise” in s. 169(1), and having regard to factors akin to those listed in s. 169(1)(a)–(g).

Analysis

Precedents Cited

Although this was not public interest litigation, Bradley J. referenced a recent Supreme Court costs decision to situate the discretion within the post-2019 costs architecture.

1) Amariei v The Chief Appeals Officer & Ors [2026] IESC 28 and Little v The Chief Appeals Officer & Ors (No. 2) [2024] IESC 53

The Court noted the Supreme Court’s statement that, following Little (No. 2), a far stricter test applies when awarding positive costs to an unsuccessful litigant in public interest litigation than when merely exempting such a litigant from an adverse costs order. While the present case did not involve an application for costs by an unsuccessful public interest litigant, the citation performs two functions:

  1. It emphasises that costs outcomes are not mechanically determined by success; they are controlled by calibrated judicial discretion under the statutory regime.
  2. It underlines that departures from the default rule are exceptional in some contexts, but nonetheless remain available where justified by the case’s circumstances.

2) Minister for Justice v McPhilips [2015] 3 IR 274, [2015] IESC 47

The Supreme Court in McPhilips (as quoted in Amariei) described awards of costs to unsuccessful litigants as a genuine rarity and confined them to cases of real substance and significant public interest. Bradley J. used that observation to illustrate the general strictness of awarding costs contrary to the usual outcome in certain categories—again by analogy rather than direct application.

3) Director of Public Prosecutions v Ryan [2011] IEHC 280; [2011] 3 I.R. 641 (“Ryan”)

While Ryan was central in the principal judgment (and featured heavily in written submissions), it remained relevant at the costs stage because the parties disputed its ratio and its application. The respondent argued that the DPP’s submissions reflected an appeal against leniency rather than a tight legal/jurisdictional point, pointing to passages critiquing the District Court’s characterisation of offending and references to victims’ rights. This broader “shape” of the appeal fed into the Court’s evaluation of how the proceedings were conducted and whether it was reasonable to contest particular issues—considerations aligned with s. 169(1)(a)–(c).

Legal Reasoning

The Court’s reasoning rests on the interaction between (i) the default entitlement to costs for an entirely successful party under s. 169(1), and (ii) the express statutory discretion to depart from that default unless the court orders otherwise, guided by the “nature and circumstances” of the case and the parties’ conduct (including the enumerated factors in s. 169(1)(a)–(g)).

Key factual/legal features driving the “no order” outcome

  • The “poor box” contribution point was not canvassed before the District Court. The Court considered it material that the issue of a contribution as a jurisdictional requirement (in the context of a strike-out/disposal) did not appear to have been raised at first instance. This supported the view that it would be unfair to treat the respondent as the sole cause of the appeal and to impose the full costs consequence on him.
  • The prosecution’s stance at first instance appeared neutral. The judgment notes that the Inspector took a neutral view when the District Judge indicated an intention to strike out the charges. That circumstance again diminished the equity of a full costs shifting against the respondent.
  • Mixed “ebb and flow” in submissions. Bradley J. observed that both sides advanced arguments not accepted, and that differences existed on the ratio of Ryan and on the utility of remittal. This supported using the court’s discretion rather than treating the DPP’s success on the ultimate legal question as dispositive on costs.

Importantly, the Court did not hold that a successful appellant in a case stated appeal should generally be deprived of costs. Rather, it treated the above features as sufficient to bring the case within the statutory “otherwise” discretion.

Impact

The decision is likely to be relied upon in future costs applications in case stated appeals (and, more broadly, proceedings to which s. 169 applies) for the proposition that:

  • Success is the starting point, not the finish line. Even where a party is “entirely successful,” the Court may make no order as to costs if the circumstances make the default outcome unjust.
  • Failure to raise a determinative point at first instance can matter. Where the appeal is driven (or rendered necessary) by matters not canvassed below, the court may treat that as a reason to moderate costs consequences.
  • Conduct and stance at first instance can affect costs. A neutral or non-oppositional position at the point a contested course is adopted may be relevant to whether the successful party should recover costs on appeal.

Practically, the judgment encourages litigants—particularly institutional parties with repeat litigation exposure—to ensure that potentially dispositive jurisdictional requirements are clearly articulated at the earliest stage, both to avoid appeals and to protect the conventional costs position if an appeal becomes necessary.

Complex Concepts Simplified

“Costs follow the event”
The usual rule that the winning party recovers legal costs from the losing party. Under s. 169(1) of the 2015 Act, this is the default where a party is “entirely successful.”
“Unless the court orders otherwise” (the statutory discretion)
Even if a party wins, the court can reach a different costs outcome—such as “no order as to costs”—after considering the case’s circumstances and the parties’ conduct, including factors listed in s. 169(1)(a)–(g) (reasonableness of raising issues, conduct, settlement efforts, etc.).
Appeal by way of case stated
A procedure whereby a lower court (here, the District Court) states a case for the opinion of the High Court on a point of law arising from the proceedings. The focus is on legal error rather than a rehearing of facts.
“Poor box”
A traditional practice in Irish criminal courts where an accused person may make a charitable contribution (historically “to the poor box”) as part of a proposed disposal. In some contexts it is discussed as linked to the court’s limited jurisdiction to strike out or otherwise dispose of charges in exceptional circumstances.

Conclusion

DPP v J.P. (No. 2) (Costs) [2026] IEHC 396 confirms that the post-2019 statutory costs regime preserves a meaningful discretion to depart from the default rule, even where one party has prevailed on the substantive legal question. The Court’s “no order” outcome turned on case-specific fairness considerations—most notably that a key jurisdictional aspect relating to a “poor box” contribution was not raised before the District Court and that the prosecution stance at that stage appeared neutral. The judgment therefore stands as a practical reminder that costs are not purely outcome-driven; they remain sensitive to how the litigation was framed and conducted.