Supreme Court rules men entitled to costs where prosecutions dropped mid-trial

Ruling relates to a matter that first came before the courts over 12 years ago

The Supreme Court has ruled that a lower court judge was entitled to order the DPP to pay the legal costs of two men whose prosecutions for alleged assault were discontinued mid-trial.

The ruling relates to a matter that first came before the courts over 12 years ago. On April 28th 2009 John Matthews, a wildlife ranger with the National Parks and Wildlife Service was involved in an altercation with Gerard Gearty at Cloonart near Roosky, in Co Roscommon.

As a result of complaints made, both men were subsequently prosecuted for assault by the gardaí, acting for the DPP, before the District Court in Leitrim .

However, on the second day of the hearing, before Judge Elizabeth McGrath, the DPP directed that both prosecutions be withdrawn.


At the District Court Mr Matthews’ solicitor, Mr Gabriel Toolan, asked the court to continue with the cases, or adjourn the cases to allow the DPP provide reasons for its decision.

The District Court judge struck out both prosecutions and ordered that their costs be paid by the DPP.

After Mr Toolan sent the gardaí a bill of costs, the DPP challenged the District Court judge's decision regarding costs by way of High Court judicial review.

Both Mr Matthews, who opposed the matter, and Mr Gearty were notice parties to the action.

The DPP successfully argued before the High Court that the rules governing the District Court precluded the judge from making of a costs order against it or any member of the An Garda Síochána prosecuting on the DPP's behalf.

The rules of court set out the procedures to be followed when bringing proceedings before the courts. There are different rules for each division of the courts.

However, earlier this year Mr Matthew, whose lawyers argued that the District Court judge was entitled to award their client his legal costs, had that decision overturned on appeal to the Court of Appeal.

The DPP was granted permission to have the case, considered by the Supreme Court. Mr Matthews, represented by Peter Blande SC, with Yvonne McNamara Bl instructed by Mr Toolan. disputed the DPP’s claim and argued in each of the courts that their client was entitled to his legal costs.

In its judgment a five-judge Supreme court comprised of the Chief Justice Frank Clarke, Mr Justice Donal O’Donnell, Mr Justice Peter Charleton, Ms Justice Iseult O’Malley and Ms Justice Marie Baker, dismissed the DPP’s appeal.

Giving the court’s decision Mr Justice O’Donnell said that action relates to the proper interpretation of the primary legislation, Rules of Court and relevant case law on whether a court can award costs against a prosecutor.

In his decision Mr Justice O’Donnell quoted a judgement given during the mid-1800s, where it was observed by the judge hearing that the law in relation to the award of costs against an official prosecutor was not in a satisfactory state and was need in a review.

“If the law has been clarified in the meantime the news had certainly not reached the District Court in Co Leitrim in 2009, and the need for review has led to the appeal before this court, and some elaborate argument now 12 years later,” Mr Justice O’Donnell said.

The judge said that the order at the centre of the action, Order 36 Rule 1 of the 1997 District Court Rules, states that a certain class of litigants cannot be subject to an order whatever the circumstances of a case.

The judge said the he had come to the conclusion that Order 36 intrudes upon an area of decision which is required to made by the Oireachtas, if a general rule is to be made, or by the courts in individual decisions in particular cases.

“A rule which exempts one class of prosecutors is one that requires democratic justification rather than technocratic expertise,” he added.

The functions and the power of the rule making authority is necessarily more limited both by the fact it must remain within the permissible area of delegation and cannot impermissibly trench upon the administration of justice.

The court held that the exclusion of the DPP and gardaí prosecuting on their behalf from the possibility of an award of costs was outside the powers of the rules making committee., he added.

The outcome of this case, he added, was merely a reflection of the constraints upon rule-making authority.

However, it was accepted that gardaí prosecuting on behalf of the DPP perform a different function to ordinary litigant, which he said must be acknowledged in any approach to the awarding of costs.

In many if not all a prosecutor can be said to have properly performed their duty even if the case does not result in a prosecution.

In the circumstances the court was satisfied to dismiss the appeal, and uphold the District Court’s decision to award the two men their costs.