Proportionate Costs for Partial Procedural Success and the Neutrality of the Supreme Court Legal Assistance Scheme – Commentary on Smith v DPP [2025] IESC 52

Proportionate Costs for Partial Procedural Success and the Neutrality of the Supreme Court Legal Assistance Scheme:
Commentary on Smith v Director of Public Prosecutions [2025] IESC 52

1. Introduction

This ruling of the Supreme Court of Ireland in Smith v Director of Public Prosecutions [2025] IESC 52 is not the substantive merits judgment in the appeal, but a separate and important decision on costs. It arises after the Court had already delivered a substantive judgment (on 30 October 2025) dealing with an application by a third party (Mr Gordon Smith) for access to Digital Audio Recordings (DAR) of criminal proceedings in the Circuit Court, in which he was not himself a party.

The present ruling, delivered on 28 November 2025, addresses:

  • Whether and to what extent the appellant, Mr Smith, is entitled to recover his legal costs in the Supreme Court.
  • How the Court should apply the principles on costs in public interest litigation and test cases, as articulated in Little v Chief Appeals Officer [2024] IESC 53 (“Little”).
  • How to treat “partial success” where a litigant wins an important procedural point (here, the right to have his appeal heard by the High Court) but ultimately fails on the substantive relief sought (additional access to the DAR).
  • Whether participation in the Supreme Court Legal Assistance/Legal Representation Scheme affects the ordinary principles of costs.
  • The relevance of an open, ex gratia costs offer by the Director of Public Prosecutions (DPP), based by analogy on the Legal Aid Custody Issues Scheme.

The Court (Dunne, Woulfe, Hogan, Collins and Donnelly JJ) uses this dispute as a vehicle to clarify the relationship between:

  • the traditional rule that “costs follow the event”,
  • the newer statutory framework on costs (under the Legal Services Regulation Act 2015 (LSRA)), and
  • the special principles for public interest and test-case litigation set out in Little.

Crucially, the Court confirms that the Supreme Court Legal Assistance/Legal Representation Scheme — under which Mr Smith was represented — does not alter or dilute the ordinary principles governing costs. Instead, costs remain a matter of judicial discretion, applied by reference to recognised criteria, including the degree of success a party has achieved.

2. Background to the Litigation

2.1 The underlying dispute: access to Digital Audio Recordings

The litigation originated in Mr Smith’s request to the Circuit Court for access to the DAR of the evidence of three witnesses in criminal proceedings in which he had not been a party. The stated purpose was to use that material in separate injunction proceedings.

Key points from the substantive background (as summarised in the costs ruling) include:

  • The Circuit Court had already granted Mr Smith limited access to some portions of the DAR, based on undertakings by him and third parties regarding use of the material.
  • Mr Smith sought additional access, which the Circuit Court refused.
  • He then attempted to appeal that refusal to the High Court under s. 37 of the Courts of Justice Act 1936.
  • The High Court held that it had no jurisdiction to entertain his appeal.
  • On further appeal, the Supreme Court contradicted the High Court, holding that the High Court did have jurisdiction to hear such an appeal from the Circuit Court in relation to DAR access by a third party.

In its earlier substantive judgment, the Supreme Court also:

  • Clarified the legal framework governing applications by third parties for access to DAR of criminal proceedings.
  • Addressed the relationship between:
    • the constitutional principle of open justice (Article 34.1 of the Constitution; justice administered in public), and
    • the courts’ inherent and statutory power to control their own processes, including regulation of access to DAR and transcripts.
  • Emphasised that access to DAR is not identical to the public’s right to attend hearings; an applicant must show by affidavit evidence that access is necessary in the interests of justice.
  • Concluded that Mr Smith’s evidential basis fell “far short” of showing the relevance or necessity of further DAR access.

Thus, while the Supreme Court vindicated his right to have his appeal heard by the High Court, it ultimately:

  1. Allowed the appeal from the High Court (correcting the jurisdiction error).
  2. Refused Mr Smith any additional access to the DAR.
  3. Affirmed the Circuit Court’s order (which had already granted limited access on undertakings).
  4. Directed the DPP to provide to one witness the portion of the transcript already supplied to Mr Smith and to explain that it had been released to him for use in his injunction proceedings.

2.2 Representation under the Supreme Court Legal Assistance Scheme

Mr Smith had been a litigant in person at earlier stages. Before the Supreme Court, he availed of the Supreme Court Legal Assistance/Legal Representation Scheme, introduced in 2016. Under this scheme:

  • The Bar Council and Law Society maintain a panel of barristers and solicitors willing to act, at the Court’s request, for unrepresented parties in Supreme Court appeals.
  • Representation is provided at no cost to the litigant.
  • However, the scheme expressly states that:
    the lawyers are entitled to apply for costs at the conclusion of the appeal and that this Court “will determine any such application on the basis of the existing legal principles applicable to costs”.

It is against this background — pro bono representation for the litigant but a potential costs claim by the lawyers — that the current ruling on costs arises.

2.3 The Attorney General’s involvement

The Attorney General appeared “at the invitation of the Court”, likely owing to the general public importance of the issues concerning open justice, access to DAR and the courts’ control of their own processes. The Court records that the Attorney General will bear his own fees, i.e. no costs order is made in his favour.

3. Summary of the Costs Ruling

The core outcome of the ruling may be summarised as follows:

  • Costs remain at the discretion of the Court, even under the modern statutory framework (the LSRA). The Supreme Court reaffirms this as the “first principle”.
  • The general starting point, drawn from Little v Chief Appeals Officer, is that where the Supreme Court recognises that public interest proceedings raise a matter of general public importance, an unsuccessful claimant will normally not be saddled with an adverse costs order.
  • The primary question in this case is thus: was Mr Smith successful or unsuccessful?
  • Mr Smith:
    • Failed on the core substantive relief (further access to the DAR).
    • Succeeded in establishing that he was entitled to an appeal to the High Court and that the High Court had wrongly refused jurisdiction.
  • The Court holds that this limited success justifies an award of partial costs, but not full costs:
    • It awards the appellant 30% of his costs of the substantive appeal.
    • It rejects his claim for full costs or 75% of costs.
  • The Court explicitly refuses to:
    • Apply the Legal Aid Custody Issues Scheme as a yardstick for costs.
    • Fix costs at the level offered by the DPP on an ex gratia basis (which would have matched the Legal Aid Custody Issues Scheme rates).
  • Because neither party achieved the order they sought on the costs application itself:
    • The Court makes no order as to the costs of the costs application.
  • The Attorney General bears his own costs.

In essence, the Supreme Court holds that:

Participation in the Supreme Court Legal Assistance/Legal Representation Scheme does not alter the general law on costs. Partial procedural success (here, securing the right of appeal) justifies proportionate, but limited, costs recovery, and the special Little criteria for full costs in public interest cases are not met.

4. Issues on Costs: The Parties’ Competing Positions

4.1 The appellant’s case for costs

Mr Smith sought his costs of the appeal, relying on several arguments:

  1. He “won the event”: he argued that the “event” for costs purposes was his entitlement to access the appellate process in the High Court. On that key question, the Supreme Court found in his favour.
  2. Limited disagreement on principles: he said there was relatively little difference between the parties on the substantive principles governing DAR access, and that the Supreme Court’s judgment had clarified the law in a way that would assist future courts and reduce costs overall.
  3. Public importance: he stressed that important issues of general public importance were addressed, particularly open justice and access to court records.
  4. Legal Assistance Scheme: he noted that the Court had directed him towards the Supreme Court Legal Assistance/Legal Representation Scheme and that his lawyers had assisted the Court in a way the Court itself expressly acknowledged.

After the DPP’s ex gratia offer (see below), which he rejected, Mr Smith indicated a willingness to accept 75% of his costs instead of full costs. He did not specifically address who should bear the costs of the costs hearing itself.

4.2 The respondent’s case for no order for costs

The Director of Public Prosecutions, by contrast, argued:

  1. She “won the event”: because no additional access to the DAR was granted, she was successful on the central substantive outcome of the appeal.
  2. Concession on jurisdiction: the DPP had conceded the jurisdictional point at “the earliest opportunity”, limiting the need for intensive argument on that aspect.
  3. General principles: the general principles ultimately articulated by the Supreme Court were said to be already contained in the Attorney General’s submissions.
  4. Application of Little: relying on Little, the DPP argued that:
    • This was not a constitutional case of conspicuous novelty.
    • It was not a case of far-reaching importance in an area of law with general application.
    • The appellant did not win a significant issue within the meaning of the Little framework.
    • Accordingly, there should be no order for costs.

4.3 The DPP’s ex gratia offer

In open correspondence (i.e. not on a “without prejudice” basis), the DPP proposed an ex gratia payment of costs:

  • Recognising the applicability of the Supreme Court Legal Assistance Scheme and the Court’s positive comments on counsel’s assistance.
  • Proposing to pay costs up to the level recoverable under the Legal Aid Custody Issues Scheme:
    • Counsel for Mr Smith would be paid on the same basis as counsel for the DPP under that scheme.
    • The solicitor would be paid in accordance with how solicitors are remunerated under that scheme.
  • Reserving the right to seek the costs of any costs hearing if that open offer was rejected.

Mr Smith rejected this proposal, criticising the Legal Aid Custody Issues Scheme as:

  • Not an appropriate model for the type of work involved in this appeal.
  • Having fees that were “too low” and reflective of repeat instructions to counsel for the DPP.
  • Failing to reflect the actual amount of work done by his legal team.

He counter-offered to accept 75% of his full costs.

5. Precedents and Authorities Considered

5.1 Little v Chief Appeals Officer [2024] IESC 53

Little is central to the Court’s treatment of costs in public interest or test-case litigation. Although the full judgment is not reproduced here, the present ruling summarises the key elements relevant to Mr Smith’s case.

In Little, the Supreme Court addressed when it is appropriate:

  • To shield an unsuccessful claimant in public interest litigation from having to pay costs to the successful State party.
  • To award full or substantial costs to a claimant who may not have succeeded on all aspects of the case, but whose proceedings raised issues of significant general importance.

The Court in Smith notes that in Little it was held:

where this Court had determined that proceedings disclose a matter of general public importance, the Court should exercise its discretion not to award costs against [an] unsuccessful claimant.

At the same time, Little appears (from the present judgment) to have identified a high bar for the positive entitlement to costs by a claimant, especially a claimant seeking full costs where only partial success is achieved. Paragraphs [62] and [63] of Little (as paraphrased here) indicate that a full costs order in favour of a claimant will typically be confined to:

  • Constitutional cases of conspicuous novelty.
  • Cases of far-reaching importance in an area of law with broad, general application.
  • Matters that are in some sense unexplored or obscure, where authoritative clarification is required.

The Supreme Court in Smith relies explicitly on these criteria to reject Mr Smith’s claim to full costs.

5.2 ESB v Good [2025] IESC 40

The Court also cites its recent decision in ESB v Good [2025] IESC 40, not for its substantive facts, but to highlight a conceptual uncertainty about the language of the LSRA and the traditional formulation “costs follow the event”.

The LSRA, in codifying the law on costs, uses the concept of an “entirely successful” party. That, in turn, raises questions:

  • When is a party “entirely successful” for the purposes of the LSRA?
  • Where no party is entirely successful, how should the court allocate costs between them?
  • If the allocation is to be determined by reference to “issues”, how exactly should an “issue” be defined in this context?

In ESB v Good the Court acknowledged that these questions are unresolved but found it unnecessary to answer them definitively in that case. In Smith, the Court adopts the same stance: it again declines to provide a comprehensive definition of “entirely successful” or “issue”, instead deciding the case on narrower, more fact-specific grounds:

the Court does not consider it to be necessary to decide the following issues: “(a) when a party has been ‘entirely successful’ as that term is used in the LSRA, (b) the criteria by reference to which it allocates costs where no party has been ‘entirely successful’ and, (c) if - as some of the cases have suggested - those criteria are to be fixed by reference to ‘issues’, what exactly an ‘issue’ is for that purpose.”

However, the citation of ESB v Good is already telling: the Court is acknowledging that we are in a transitional period between traditional, judge-made costs rules and a statutory framework that introduces new language and concepts — without yet specifying how all of those concepts are to be applied in practice.

5.3 The Legal Services Regulation Act 2015 (LSRA)

While the LSRA is not quoted in detail, the Court alludes to the “new statutory framework” for costs introduced by that Act. Section 169 of the LSRA:

  • States that the starting point is that a party who is entirely successful in proceedings is entitled to an order that the other party pay his or her costs.
  • Expressly recognises that costs are still subject to the discretion of the court, to be exercised in accordance with specified criteria (for example, conduct of the parties, offers to settle, and whether the case was test-case or public interest litigation).

The Supreme Court in Smith confirms that the statute has not displaced the core principle that “costs remain at the discretion of the Court”.

5.4 Courts of Justice Act 1936, s. 37

Section 37 of the Courts of Justice Act 1936 is relevant to the substantive appeal, rather than directly to the costs ruling. It confers jurisdiction on the High Court to hear certain appeals from the Circuit Court. The Supreme Court held (and the DPP conceded early) that:

  • An application by a third party for access to DAR of criminal proceedings is a civil matter within the meaning of s. 37.
  • The High Court therefore had jurisdiction to hear Mr Smith’s appeal against the Circuit Court’s refusal to grant full access.

This jurisdictional question is central to the evaluation of whether, and to what extent, Mr Smith was “successful” for costs purposes.

6. The Court’s Legal Reasoning on Costs

6.1 The primacy of judicial discretion

The Supreme Court begins its reasoning by reaffirming a foundational principle:

“Although this Court has benefitted from the advocacy on behalf of the appellant by the legal representatives who were prepared to act in this appeal without any security in respect of the payment of their costs that fact cannot alter the principles which govern this decision on costs. The general principles must apply.

and:

“The first principle is that, even within the new statutory framework, costs remain at the discretion of the Court.”

Two implications follow:

  • The pro bono nature of the representation (from the litigant’s perspective) under the Supreme Court Legal Assistance Scheme cannot influence the legal analysis on costs.
  • The LSRA has not converted costs into an automatic, mechanical entitlement based solely on “success”; the Court retains a broad evaluative role.

6.2 The starting point in public interest proceedings: Little

The Court then moves to the specific context of public interest proceedings or test-case litigation, which is clearly the lens through which it views Mr Smith’s case. It notes that:

  • The parties accepted that the relevant “starting point” is that articulated in Little regarding unsuccessful claimants whose proceedings raise issues of general public importance.
  • In such cases, the Court will generally exercise its discretion so as not to award costs against the claimant. In other words, the default is “no order as to costs” against an unsuccessful public interest litigant.

However, in Smith the Court identifies a preliminary question:

“The first issue here however is whether the claimant was successful.”

Only by determining whether Mr Smith is to be seen as successful, unsuccessful, or partially successful can the Court decide how to apply the Little principles.

6.3 Was Mr Smith “successful”? The nuanced answer

The Court carefully unpacks Mr Smith’s position:

  • His original application (at Circuit Court level) was for “the DAR of the evidence of three witnesses”.
  • In the Supreme Court, “it was decided that he was not entitled to any portion of the DAR” beyond what had already been granted by the Circuit Court. In terms of the primary substantive relief sought in the appeal (further DAR access), he lost.
  • However, he achieved success on a significant procedural issue:
    • The High Court had wrongly refused to hear his appeal for lack of jurisdiction.
    • The Supreme Court held that the High Court ought to have heard and determined his appeal.
    • To that extent, he was “the beneficiary of an appeal which had otherwise been denied to him”.

Yet the Court notes an important feature of that “success”:

“What is striking about that ‘issue’ is that the respondent had agreed at an early stage that the application was a civil matter for which the High Court had jurisdiction under s. 37 of the Courts of Justice Act, 1936 and the appellant did not object to this Court deciding his appeal.”

This nuance matters. The DPP had already conceded the point that ultimately formed the basis of Mr Smith’s procedural “win”. Accordingly, while he formally succeeded on that point, the practical and forensic weight of the success was less than if:

  • The respondent had vigorously contested jurisdiction throughout, and
  • The Court’s ruling had decisively shifted the law in the appellant’s favour on an actively disputed question.

The Court therefore adopts a middle position:

  • It does not accept the DPP’s submission that she alone “won the event”.
  • Nor does it accept the appellant’s suggestion that he should be treated as the successful party on the appeal in a global sense.
  • It instead recognises a form of partial success on a discrete, important procedural issue.

6.4 Why full costs were refused: application of Little

Turning to Mr Smith’s claim for full costs (or 75% of costs), the Court applies the Little framework and finds that:

“we do not accept that this case comes within the criteria for such an award as set out in Little at paragraphs [62] and [63].”

The Court explicitly holds:

  • The issues were not of the “fundamental or novel type” contemplated in Little.
  • The decision was not of far-reaching importance in an area of law with general application.
  • The area of law was not unexplored or obscure:
    • Rather, the substantive judgment “brought together many strands that were apparent in other decisions including those of this Court.”

This is important doctrinally:

  • The Court is tightening, or at least confirming the high threshold for, full costs recovery by claimants in public interest or test-case litigation.
  • Even where important procedural points are determined, and the Court produces a judgment that clarifies the law, that by itself does not automatically mean the case meets the “conspicuous novelty” or “far-reaching importance” criteria in Little.

6.5 Determining an appropriate percentage: 30% of costs

The Court’s concrete determination is as follows:

“it is appropriate to award the appellant 30% of his costs of the substantive appeal.”

The reasoning may be distilled as:

  • Mr Smith only succeeded in relation to the entitlement to an appeal, not on the substantive relief concerning additional DAR access.
  • The clarification of the legal framework around DAR applications is acknowledged, but it is treated as an incremental synthesis of existing strands of authority, rather than a landmark shift justifying full costs.
  • The success on jurisdiction (High Court appealability) was:
    • Real, in the sense that it vindicated his right to be heard;
    • But partly mitigated by the fact that the DPP had already accepted jurisdiction at an early stage; and
    • Procedural rather than substantive in ultimate effect, as the Court then refused the main relief sought.

The choice of 30% appears to be judgment-based rather than formulaic. The Court does not articulate a mathematical test, but uses its discretion to fix a percentage which, in its view, fairly reflects the limited nature of the appellant’s success.

6.6 The neutrality of the Supreme Court Legal Assistance Scheme

At paragraphs 9–10, the Court emphasises the status of the Supreme Court Legal Assistance/Legal Representation Scheme:

  • The scheme has “worked well” since 2016.
  • Representation is provided “at no cost” to the litigant.
  • However, the scheme expressly states that lawyers may apply for costs and that the Court will determine such applications “on the basis of the existing legal principles applicable to costs.”

The Court underscores that the benefit it has gained from counsel’s advocacy cannot influence the applicable principles:

“Although this Court has benefitted from the advocacy on behalf of the appellant by the legal representatives who were prepared to act in this appeal without any security in respect of the payment of their costs that fact cannot alter the principles which govern this decision on costs.”

The clear principle is:

Participation in the Legal Assistance Scheme does not create a special or more generous costs regime; nor does it justify treating the claimant as “successful” for costs purposes because he has been ably represented pro bono. The same substantive criteria on success, partial success and public importance apply as in any other case.

6.7 The Legal Aid Custody Issues Scheme: an inappropriate template

The DPP proposed to pay costs on an ex gratia basis by analogy to the Legal Aid Custody Issues Scheme, effectively suggesting a standardised tariff for counsel and solicitors similar to that paid to counsel acting for the DPP under that scheme.

The Court firmly rejects the idea that costs in this case should be measured:

  • By reference to a specific monetary amount, or
  • “By analogy with the Legal Aid Custody Issues Scheme”.

Instead, the Court insists that its role is to determine the principle and proportion (in this case, 30% of costs), not to micro-manage or standardise fees by reference to another statutory or administrative scheme designed for a different context (custody issues).

6.8 No order on the costs of the costs application

Finally, having decided the substantive costs issue, the Court turns to the costs of the costs hearing itself. It notes:

  • Neither party achieved the order they sought:
    • The appellant did not get full costs or even the 75% he proposed.
    • The respondent did not secure a “no order for costs” outcome (or the more restrictive ex gratia basis she at one point offered).

In those circumstances, the Court concludes that the “most appropriate order” is:

to make no order in respect of the making of this application.

Consequently:

  • Each side bears its own costs of the costs application.
  • This implicitly neutralises the DPP’s earlier indication that she would seek the costs of the costs hearing if her open offer was not accepted.

7. Impact and Significance

7.1 For litigants using the Supreme Court Legal Assistance Scheme

The decision is particularly important for litigants and lawyers contemplating use of the Supreme Court Legal Assistance/Legal Representation Scheme:

  • The Scheme facilitates access to the Supreme Court by ensuring that unrepresented litigants can obtain professional representation without personal financial risk.
  • However, the Scheme does not guarantee that counsel or solicitors will be paid, nor does it confer any special costs rights on the litigant.
  • Lawyers acting under the Scheme must understand that their entitlement to be paid depends entirely on:
    • Whether a court order for costs is made at all; and
    • If so, the degree of success of their client, viewed objectively under the same principles that apply to all parties.

In practical terms:

  • Lawyers may be taking on a real financial risk when they act under the Scheme.
  • The Court will not “reward” pro bono service by relaxing the substantive requirements for an award of costs.

7.2 For public interest and test-case litigation

Smith reinforces, and in some respects tightens, the costs environment for public interest litigation after Little:

  • On the protective side, Little remains authoritative: where the Supreme Court recognises that proceedings raise a matter of general public importance, an unsuccessful claimant will usually not be ordered to pay the State’s costs.
  • On the reward side (for successful or partly successful claimants), the bar for full costs recovery remains high:
    • Constitutional novelty,
    • Far-reaching general importance, or
    • An unexplored or obscure area of law requiring clarification.
  • Partial procedural success, especially where the primary substantive relief is refused, is likely to attract only proportionate partial costs.

This has implications for litigants and public interest organisations:

  • They can be somewhat reassured that, if their case is recognised as one of general public importance, they may be protected from adverse costs if they lose.
  • But they should not assume that success on some issues — especially procedural issues — will automatically entitle them to full costs.
  • Strategic litigation must therefore weigh the risk that even partial success will only lead to partial cost recovery.

7.3 For the law on access to DAR and open justice

Although the present ruling is on costs, it rests on and references the substantive judgment, which:

  • Affirmed that access to DAR for third parties is governed by principles distinct from simple physical openness of courts under Article 34.1.
  • Reinforced the courts’ inherent power to control their own process, including the management and release of recordings and transcripts.
  • Required an applicant to show, by affidavit evidence, that access is necessary in the interests of justice.

The costs ruling’s reference to these principles underscores that:

  • Applications by non-parties for court recordings are serious matters, involving balancing of open justice, privacy, fair trial rights, and proper use of court processes.
  • Even if such litigation has a public interest dimension, it will not necessarily be classed as “fundamental” or “of far-reaching importance” for costs purposes.

7.4 For the State’s litigation and settlement strategy

The judgment also has implications for how State parties (including the DPP and the Attorney General) formulate and communicate open costs offers:

  • Open (non–“without prejudice”) offers can be brought to the Court’s attention and may be relevant to its assessment of costs.
  • However, the Court will not allow such offers — especially those tied to specific fee schemes like the Legal Aid Custody Issues Scheme — to dictate the legal principles or the form of its costs orders.
  • State parties should understand that their analogies to administrative or statutory schemes (e.g. custody issues) will not automatically be treated as appropriate metrics in unrelated Supreme Court appeals.

In practical terms, the ruling subtly encourages:

  • More principled and transparent reasoning behind State costs offers, aligned with the Little framework and the LSRA criteria.
  • Cautious reliance on ex gratia schemes as benchmarks, recognising that the Court may ultimately prefer a more percentage-based, success-sensitive approach.

8. Complex Concepts and Terminology Explained

Digital Audio Recording (DAR)
Modern Irish courts routinely record proceedings digitally. A DAR is the official audio record of what was said in court. Access to these recordings is regulated by law and by court rules. They are not automatically available to non-parties, and even parties may need permission to obtain them.
Open justice and Article 34.1
Article 34.1 of the Constitution provides that justice shall be administered in public, save in limited circumstances provided by law. This underpins the principle of open justice: the public and the media can attend hearings and report on them. However, the Supreme Court emphasises that access to DARs or transcripts is a different question: it concerns the courts’ control over their own records and processes, not just physical access to hearings.
Courts’ control of their own processes
Courts have an inherent jurisdiction, recognised in legislation and rules of court, to regulate their own procedures, including:
  • Who may access court files,
  • How transcripts and recordings are released, and
  • Conditions (such as undertakings) attached to such access.
This control coexists with, and sometimes limits, the broad principle of open justice.
“Costs follow the event”
This traditional rule means that the losing party usually pays the winning party’s costs. Under the LSRA, this is reframed as a presumption that the “entirely successful” party is entitled to costs. However, costs remain subject to the Court’s discretion and can be adjusted to reflect partial success, conduct, and other factors.
“The event”
In costs law, “the event” typically refers to the overall outcome of the case — who, in substance, has won. Difficulties arise when neither side is entirely successful, or where success is split across multiple issues. The Supreme Court in ESB v Good and Smith acknowledges that there remains uncertainty about how to define “entirely successful” and how to allocate costs by reference to “issues”.
Public interest proceedings
These are cases brought not solely or primarily to vindicate an individual’s private rights or interests, but to address legal questions affecting a broader class of persons or the public at large. The Supreme Court in Little treated such cases differently for costs purposes, particularly to protect unsuccessful public interest litigants from adverse costs.
Supreme Court Legal Assistance/Legal Representation Scheme
A scheme (since 2016) under which the Bar Council and Law Society maintain a panel of lawyers willing to represent unrepresented litigants in Supreme Court appeals:
  • The litigant pays no fees.
  • The lawyers may later apply for their costs, which will be determined using the ordinary law of costs.
  • The scheme itself does not alter who is considered “successful” or how much of their costs a party should recover.
Legal Aid Custody Issues Scheme
A State scheme for paying legal representatives in certain criminal law contexts (e.g. habeas corpus, extradition, bail and other custody-related matters). Fees are often set according to fixed rates. In Smith, the DPP offered to pay the appellant’s lawyers on an ex gratia basis using this scheme as a benchmark. The Supreme Court refused to adopt this as the metric for its costs order.
Ex gratia
An ex gratia payment is made “out of grace” rather than because of a strict legal obligation. The DPP’s offer to pay costs up to Legal Aid Custody Issues Scheme levels was ex gratia: a voluntary concession, not an acknowledgment of legal liability.
Open correspondence vs “without prejudice”
Open correspondence can be shown to the Court and relied on in arguments about costs. By contrast, “without prejudice” communications are generally privileged and cannot be put before the Court as evidence of admissions or offers, except in limited circumstances (e.g. on the question of costs under certain conditions). The DPP’s ex gratia costs proposal was expressly open, and the Court considered it.
Affidavit evidence
An affidavit is a sworn written statement of facts. In the context of DAR applications, the Supreme Court stresses that an applicant must establish an entitlement to access by evidence on affidavit, showing that the requested access is necessary in the interests of justice.
Attorney General’s role
The Attorney General can be invited by the Supreme Court to assist (for example, when constitutional or systemic issues are involved). In such circumstances, the Attorney General may appear as a form of amicus curiae (friend of the court). In Smith, the Attorney General’s costs are not shifted to any party; he bears his own fees.

9. Conclusion

The costs ruling in Smith v Director of Public Prosecutions [2025] IESC 52 provides an important, nuanced clarification of Irish costs law at the intersection of:

  • The new statutory framework under the LSRA;
  • The traditional principle that costs follow the event, subject to judicial discretion; and
  • The special regime for public interest and test-case litigation articulated in Little v Chief Appeals Officer.

Its key contributions can be distilled as follows:

  1. Costs remain a matter of discretion. Even under the LSRA, the Supreme Court retains broad discretion to allocate costs in light of success, partial success, public importance and other factors.
  2. Participation in the Supreme Court Legal Assistance/Legal Representation Scheme does not modify costs principles. Counsel’s willingness to act without upfront security, and the Court’s appreciation of their assistance, cannot change the underlying legal analysis.
  3. Partial procedural success justifies proportionate costs. Mr Smith’s victory on the jurisdictional point — the right to an appeal — warranted an award of 30% of his costs, notwithstanding his ultimate failure on substantive DAR access.
  4. Little sets a demanding standard for full costs recovery by claimants. Full costs for a successful or partly successful public interest litigant will generally be confined to cases of conspicuous constitutional novelty, far-reaching general importance, or exploration of obscure areas of law. Smith did not meet that threshold.
  5. State cost offers based on other schemes will not dictate the Court’s approach. The Court declined to measure costs by reference to the Legal Aid Custody Issues Scheme, preferring a principled percentage-based approach grounded in the facts and degree of success.
  6. Costs of the costs application may be neutralised where neither side prevails. Because neither party obtained the order they sought, the Court made no order as to the costs of the costs hearing itself.

In the broader legal context, Smith serves as a practical guide for:

  • Litigants and lawyers considering public interest appeals,
  • Participants in the Supreme Court Legal Assistance Scheme, and
  • State parties formulating costs strategies and offers.

It confirms that while the Supreme Court is willing to protect public interest litigants from crushing adverse costs under the Little framework, it will not readily convert partial or procedural success into a full costs entitlement. Instead, proportionate and carefully reasoned partial costs orders, such as the 30% award in this case, will remain a key tool in the Court’s discretionary arsenal.

Case Details

Year: 2025
Court: Supreme Court of Ireland

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