Supreme Court Ruling on Costs in Appeal Concerning Access to Digital Audio Recording

Factual and Procedural Background

On 30 October 2025, the Supreme Court delivered a substantive judgment on an appeal brought by the Appellant against the Respondent concerning access to portions of the Digital Audio Recording ("DAR") of criminal proceedings in which the Appellant had not been a party. The Appellant had originally applied for access to the DAR of the evidence of three witnesses in Circuit Court criminal proceedings for intended use in separate injunction proceedings.

The Circuit Court had already granted the Appellant access to some portions of the DAR on the basis of undertakings given by the Appellant and third parties. The High Court had taken the view that it had no jurisdiction to hear an appeal from the Circuit Court in relation to access to the DAR by a third party. The Supreme Court disagreed, holding that the High Court did have jurisdiction to hear such an appeal under the existing statutory framework. It set out general principles governing applications for access to the DAR, emphasising:

• The constitutional principle that justice is to be administered in public, subject to limited statutory exceptions.
• The courts’ power to regulate access to the DAR as part of their control over their own processes, under legislation and Rules of Court.
• The distinction between open justice under Article 34.1 of the Constitution and access to the DAR.
• The procedural requirement that an applicant must demonstrate entitlement to access by affidavit evidence, and that access must be shown to be necessary in the interests of justice.

Applying those principles, the Supreme Court held that the Appellant had failed to demonstrate the relevance or necessity of further access to the DAR. It concluded that rescinding the Circuit Court’s existing order granting limited access would be counterproductive, as it could undermine the undertakings on which that order had been based. The Court therefore:

• Allowed the appeal from the High Court (by recognising its jurisdiction).
• Refused the Appellant access to any additional portion of the DAR.
• Affirmed the order of the Circuit Court.
• Directed the Respondent to provide one witness with that part of the transcript already released to the Appellant and to explain that the release occurred on foot of the Appellant’s application for the DAR for intended use in injunction proceedings.

At earlier stages, the Appellant had been a litigant in person. Before the Supreme Court, he availed of the ad hoc Supreme Court Legal Assistance/Legal Representation Scheme, under which a panel of barristers and solicitors may be requested by the Court to represent unrepresented parties at no cost to those parties. The Appellant’s solicitor and counsel, acting under this Scheme, then applied for their costs of the appeal. The Respondent opposed the application and maintained that there should be no order for costs.

Following the substantive judgment, an issue arose as to costs, which is the subject of this ruling delivered on 28 November 2025. The Attorney General appeared in the appeal at the invitation of the Court and will bear his own fees.

Legal Issues Presented

1. Whether, and to what extent, the Appellant was “successful” in the appeal for the purpose of a costs order, given that he obtained recognition of a right of appeal to the High Court but was refused any additional access to the DAR.
2. Whether the criteria identified in Little v Chief Appeals Officer for awarding full costs or making no order as to costs in public interest proceedings were satisfied in this case.
3. Whether the Supreme Court should decide, in the context of this case, the meaning of a party being “entirely successful” and the criteria for allocating costs on an issue-by-issue basis under the new statutory framework.
4. What proportion of the Appellant’s costs of the substantive appeal, if any, should be awarded, having regard to his limited success and the public interest aspects of the case.
5. Whether any order should be made in respect of the costs of the present application for costs (“the costs hearing”).

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that he had “won the event” because the Supreme Court determined that the High Court had jurisdiction to hear his appeal and that he was entitled to such an appeal.
• He argued that there was little substantive difference between the parties’ positions on the general principles governing access to the DAR.
• He relied on the fact that the Supreme Court had articulated authoritative legal principles regarding access to the DAR which would, in his submission, allow future applications to be determined more readily and at lower overall cost.
• He submitted that the case involved important legal issues of general public importance.
• He pointed out that it was the Court that had directed him towards the ad hoc Supreme Court Legal Assistance/Legal Representation Scheme, and that his lawyers had acted under that Scheme.
• In response to the Respondent’s open offer on costs, the Appellant rejected the proposal that costs be paid on the basis of the Legal Aid Custody Issues Scheme, contending that:
  • That scheme was not appropriate to the nature of the work done in this appeal.
  • The fees under that scheme were too low and might reflect circumstances where counsel for the Respondent are retained on a repeat basis.
  • The proposed level of remuneration did not reflect the work actually undertaken by his legal representatives.
• Nonetheless, the Appellant indicated a willingness to reduce his claim from full costs to a claim for 75% of the costs of the appeal. His submissions did not address how the costs of the costs hearing itself should be treated.

Respondent's Arguments

• The Respondent argued that she, rather than the Appellant, had “won the event” because the Supreme Court ultimately refused the Appellant any additional access to the DAR.
• She emphasised that she had conceded the key jurisdictional issue (that the High Court had jurisdiction to hear the appeal as a civil matter under s. 37 of the Courts of Justice Act 1936) at the earliest opportunity.
• The Respondent pointed out that the general principles set out by the Supreme Court in its substantive decision corresponded to submissions made on behalf of the Attorney General.
• Relying on Little v Chief Appeals Officer, the Respondent submitted that no order for costs should be made because:
  • The case 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 had not succeeded on a significant issue.
• While maintaining that no costs should be awarded, the Respondent drew the Court’s attention to open correspondence sent to the Appellant’s solicitors. In that correspondence:
  • She acknowledged the applicability of the Supreme Court Legal Assistance/Legal Representation Scheme.
  • Given that the Court had expressly noted the helpful submissions made by the Appellant’s lawyers, she made an ex gratia offer to pay costs equivalent to those recoverable under the Legal Aid Custody Issues Scheme: counsel to be paid on the same basis as counsel for the Respondent, and the solicitor to receive costs on the basis applicable to solicitors under that scheme.
  • She stated that, if the open offer were not accepted, she would seek the costs of any hearing concerning costs.

Attorney General's Position

• The Attorney General appeared in the substantive appeal at the invitation of the Court. The ruling records, without elaboration, that the Attorney General will bear his own fees. No further arguments by the Attorney General are detailed in the provided opinion.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by outlining the nature and operation of the Supreme Court Legal Assistance/Legal Representation Scheme, which was introduced in 2016. Under this Scheme, panels of solicitors and barristers can be asked by the Court to represent unrepresented parties in Supreme Court appeals at no cost to those parties. The Court stressed that, although the Appellant’s legal representatives had assisted the Court without any prior security as to payment, this fact could not alter the principles governing the determination of costs. The Scheme expressly provides that any applications for costs are to be decided in accordance with existing legal principles on costs.

The Court then reaffirmed that, even within the new statutory framework, the fundamental principle remains that costs are always at the discretion of the Court. By reference to Little, the Court noted that the “starting point” in public interest cases is that, where proceedings disclose a matter of general public importance, the Court should consider exercising its discretion not to award costs against an unsuccessful claimant. The first question, therefore, was whether the Appellant could be regarded as “successful”.

The Court observed that the Appellant’s original application sought access to the DAR of the evidence of three witnesses. In the Supreme Court, however, it was ultimately decided that he was not entitled to any portion of the DAR beyond what had been previously granted by the Circuit Court. In that sense, the Appellant failed on the substantive outcome he sought. Nonetheless, the Court acknowledged that the Appellant had been successful on a specific aspect of the case: it held that the High Court did have jurisdiction to hear his appeal, so that he was the beneficiary of an appeal which had otherwise been denied to him.

The Court highlighted that this jurisdictional “issue” had been conceded by the Respondent at an early stage, who had accepted that the application was a civil matter within the High Court’s jurisdiction. The Appellant had not objected to the Supreme Court itself proceeding to determine the appeal. This context informed the Court’s assessment of how much weight to give to the Appellant’s partial success.

In response to the Respondent’s submission that she had “won the event”, the Court, in line with its approach in ESB v Good, regarded it as unnecessary to determine several broader questions under the LSRA framework, namely:

• When a party is “entirely successful”.
• The criteria for allocating costs where no party is “entirely successful”.
• What constitutes an “issue” if costs are to be allocated by reference to issues.

The Court held that it was sufficient to proceed on the basis that the Appellant should receive some recognition, but not full recognition, of his success on the jurisdictional point. It therefore accepted that the Appellant should receive a portion of his costs of the substantive appeal to reflect the fact that he obtained access to an appeal to which he had previously been denied.

Turning to the Appellant’s claim for a full award of costs, the Court examined whether the case came within the criteria set out in Little (paragraphs [62]–[63]) for making a full costs order in favour of a claimant in public interest proceedings. The Court held that those criteria were not satisfied:

• The issues in the present case were not of the fundamental or novel type envisaged in Little.
• The decision was not of far‑reaching importance in an area of law with general application.
• The matter did not concern an unexplored or obscure area of law; rather, the substantive judgment consolidated various strands already present in other decisions, including previous Supreme Court cases.

On that analysis, the Court rejected the Appellant’s argument that he should receive a full award of costs on the basis of the public importance of the issues or the clarificatory nature of the judgment.

In determining the appropriate level of costs, the Court weighed the limited nature of the Appellant’s success (securing recognition of the High Court’s jurisdiction and a right to appeal) against his failure on the core substantive relief (further access to the DAR). It concluded that the “only” real success lay in obtaining an appeal and, to a lesser extent, in clarifying the legal position regarding applications for access to the DAR. The Court considered that a partial award of costs was therefore appropriate and fixed this at 30% of the Appellant’s costs of the substantive appeal.

The Court expressly declined to measure costs by reference to a specific monetary amount or to tie them to the Legal Aid Custody Issues Scheme, notwithstanding the Respondent’s ex gratia offer framed by reference to that scheme. Instead, it opted for a percentage-based approach (30% of the Appellant’s costs) reflecting its overall discretionary assessment.

Finally, the Court addressed the costs of the costs application itself. The Respondent had offered, in open correspondence, to pay costs on a particular basis, and had indicated that she would seek the costs of any costs hearing if that offer were rejected. The Appellant had rejected the offer and sought 75% of his full costs of the appeal. The Court noted that neither party had achieved the outcome they sought in relation to the final costs order. In light of that, the Court held that the most appropriate course was to make no order as to the costs of the application for costs (“the costs hearing”).

Holding and Implications

Holding: The Supreme Court held that the Appellant was entitled to a partial award of costs to reflect his limited success in establishing that he was entitled to an appeal to the High Court, but not to a full costs order.

• The Appellant is awarded 30% of his costs of the substantive appeal.
• No order is made as to the costs of the application for costs (the costs hearing).
• The Attorney General will bear his own fees.

Implications: The decision confirms that legal representatives acting under the Supreme Court Legal Assistance/Legal Representation Scheme may apply for costs, but that such applications will be determined strictly in accordance with general principles on costs. The Court reaffirmed that costs remain within its discretion and that success on a discrete jurisdictional issue, without success on the substantive relief sought, may justify only a partial costs award.

The ruling also illustrates the Court’s continued reliance on the criteria in Little for awarding full costs in public interest proceedings, and its reluctance, consistent with ESB v Good, to decide broader questions about the meaning of “entirely successful” or the detailed parameters of an issue‑based approach to costs where doing so is unnecessary to resolve the case at hand. The judgment has direct consequences for the parties by ensuring that the Appellant recovers a limited proportion of his costs, while the Respondent avoids a full adverse costs order. The opinion does not purport to create new doctrinal rules but applies and reiterates existing principles on costs.