High Court dismisses costs claim in forensic sample retention application due to Rules classifying it as criminal proceedings.

Neutral Citation [2015] IEHC 461

THE HIGH COURT

[2014 No 938 S.S.]

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

SEÁN DOUGLAS

RESPONDENT

JUDGMENT of Ms. Justice Baker delivered on the 16th day of July, 2015

1. This is a case stated by Judge Patricia McNamara, a judge of the District Court, wherein she asks the opinion of the High Court on

two questions of law as follows:-

1) In an application under s. 4(5) of the Criminal Justice (Forensic Evidence) Act 1990 (as amended) do I have jurisdiction

to award costs against the DPP?

2) What are the criteria that should be applied in considering an application for costs in an application under s. 4(5) of the

Criminal Justice (Forensic Evidence) Act 1990 (as amended)?

Facts

2. On 13th November, 2012 Seán Douglas, the respondent, was arrested on suspicion of murder, and detained under s. 50 of the

Criminal Justice Act 2007. During his detention, and following an authorisation by a Superintendent a buccal swab was taken from him

under s. 2 of the Criminal Justice (Forensic Evidence) Act 1990 (as amended) (the “Act of 1990”). The applicant was released from

custody without charge, and has not since been charged with any relevant offence.

3. The legislation provides that if an accused is not prosecuted for an arrestable offence within twelve months of the sample being

taken the sample must be destroyed, unless the court orders its retention for a further period of three years under s. 4(5) of the Act

of 1990. Certain exceptions to the twelve month period are identified in s. 4(2), which are not relevant to this application.

4. The application for the retention of a sample is made under s. 4(5) which I quote in full:-

“If a court is satisfied, on an application being made to it by or on behalf of the Director of Public Prosecutions or the

person from whom the sample was taken, that there is good reason why records and samples to which this section

applied should not be destroyed under this section, it may make an order authorising the retention of such records and

samples for such purpose or period as it may direct.”

5. Application was made by the DPP on the 7th November, 2012 to the District Judge under s. 4(5) of the Act of 1990 for an order

that the sample taken from the respondent be retained for a period of three years. The DPP and the respondent were represented in

each case by a solicitor, and evidence adduced by the DPP was cross examined by the solicitor for the respondent. Following this,

submissions were made by both sides and Judge McNamara granted the application for retention of the sample for a period of a

further three years. After the order was made the solicitor for the respondent made an application for costs, and it was in the

context of that application that the District Judge stated this case to me, both with regards to her jurisdiction to award costs and

the factors, if any, which ought to influence the exercise of that discretion, if such exists.

Source of the jurisdiction

6. It is accepted by counsel for both parties that on the authority of the divisional High Court in Attorney General v Crawford [1940]

I.R. 335, as the District Court is a creature of statute, it cannot have any inherent jurisdiction to award costs:-

“It is well established that there is no inherent power or jurisdiction to grant costs and that costs can only be granted

under the provisions of some statute or rules…”

7. The Act of 1990 does not expressly exclude the jurisdiction to award costs, and I now turn to consider whether the power to

award costs is contained within any other statutory provision.

8. The question in this case stated is a net one: whether in the absence of express salutatory authority in the statutory context in

which substantive proceedings are heard, the District Court may make a costs order, or whether the jurisdiction is found in the Courts

Acts and the Rules of the District Court made under the authority of those Acts.

The authorities

9. Counsel fairly pointed me to the fact that three recent judgments of the High Court, each on a consultative case stated, have

already considered the question of the power of the District Court to award costs, and that some difference in approach is apparent

from these judgments.

10. The first in time is the judgment of Hedigan J. in Southern Hotel Sligo Ltd. v. Iarnród Éireann [2007] 3 I.R. 792. The question

raised related to the power of the district court to award costs in proceedings under s. 108 of the Environmental Protection Agency

Act 1992. Hedigan J. held that no jurisdiction lay, and looked in particular to, what he described as, the “very nature of the section

108 procedure as a ‘public watchdog’ charter”, and noted that the section did not provide for an order for costs, either in favour or

against a claimant taking a “public watchdog” role. As he said:-

“This is because, absent provision for a costs order, the watchdog will not be frightened to bark by the prospect of a

large order for costs against him in the event of an unsuccessful application.... It seems to me that the intention of the

legislature was to create such a watchdog procedure and making no provision for costs either for or against any party is

an essential part of that procedure.”

11. Hedigan J. confined his discussion and analysis to s. 108 and his focus was the policy of the legislation gleaned from the fact that

the legislation contained the “clear intention of the legislature in excluding costs from a s. 108 procedure”, for policy reasons,

because the proceedings were “in the nature of a public law complaint.”

12. He found no jurisdictional basis in O. 51 r. 1 to award costs, because he considered that the District Court Rules cannot “create a

power to award costs where there is no jurisdictional basis to do so.”

13. Counsel for the respondent points me to the fact that Hedigan J. in making this general statement did not avert to the express

power vested in the Rules Committee by s. 34 of the Courts (Supplemental Provisions) Act 1961 to make provision for costs. He

argues that the decision of Hedigan J. is to be confined to the unique type of application before him described by him as “watchdog”

proceedings, and that the decision ought not to guide my judgment in what is a wholly different class of application.

14. O’Malley J. in HSE v. OA, [2013] IEHC 172, the second of the three recent authorities, also observed the absence of reference to

the Courts Acts in the judgment of Hedigan J. and I now turn to consider her judgment.

15. O’Malley J. was determining a consultative case stated from the District Court which had heard an application for an emergency

care order under the Child Care Act 1991, and part of her judgment concerned the power of the District Court to award costs to a

respondent in proceedings of that nature. There was no relevant provision under the Child Care Act 1991 that conferred express

provision on the District Judge to award costs to a respondent to care proceedings, albeit certain other parts of the Act did confer a

power to award costs either to a guardian ad litem, or solicitor who was appointed to represent a child. O’Malley J. held in favour of

the respondent, the parent of the child, who had sought costs in the District Court, saying that the proceedings were civil

proceedings for the purposes of O. 51 r. 1. She held that the child care proceedings were “civil” proceedings and that a jurisdiction to

award costs thus arose. O’Malley J. took the view that the matter before her was a civil case simpliciter and did not consider, for the

purposes of the question of costs under the Rules and the Courts Acts, that a distinction was required to be drawn between public

and private civil law cases.

16. It should be noted that the Attorney General accepted in the High Court that the District Court did have power to award cost,

and that the argument that no such power exists was made by the HSE.

17. At para. 32 of her judgment O’Malley J. stated:-

“Counsel for the HSE argues that none of the above provisions expressly confer a power in relation to child care

proceedings. The simple answer to that is that they do not have to. The combined effect is clear- the District Court

Rules Committee has a general power to make rules providing for costs in civil proceedings and it has done so.”

18. The decision of O’Malley J. was appealed to the Supreme Court, and the HSE then conceded the point, so that the sole question

before that Court was a consideration of the factors that should inform the discretion of the District judge in awarding costs. I

consider that the Supreme Court thus has tacitly accepted that the approach of O’Malley J. is correct on the jurisdictional issue.

19. The third case is the judgment of Peart J. in Hayes v. Sheahan [2013] IEHC 179. O’Malley J. had delivered her judgment in HSE v

OA just two weeks before the judgment of Peart J. in Hayes v. Sheahan, and it would seem clear that the judgment of O’Malley J. was

not opened to Peart J. as no reference is made to it in the body of his judgment.

20. The applicant successfully appealed to the District Court a refusal by the respondent to grant him a firearms certificate pursuant

to the provisions of s. 15A of the Firearms Act 1925 – 2009 and sought an order for costs. Peart J. on a case stated held that the

District Court had no power to award costs to the applicant in the circumstances. He considered that the appeal under the Firearms

legislation did not fall within the definition of “civil proceedings” in the Rules of the District Court and that no power to award costs

lay in the District Court.

21. The Court, however, left over the question of whether the Rules of the District Court could confer jurisdiction to award costs

when primarily legislation did not do so.

22. Thus, there is a difference in approach to be noted in two of the judgments outlined, and as I consider that the question before

me must, for reasons that will appear, be determined in the light of the Courts Acts and the rule making power of the District Court

Rules Committee, I consider that the judgment of Peart J. is not on point.

23. With that in mind I turn to examine the relevant statutory context.

The District Court: The rule making powers

24. Section 91 of the Courts of Justice Act 1924 provides that rules may be made inter alia for practice and procedure generally

including questions of costs:-

“Such rule-making authority may at any time and from time to time after the passing and before or after the

commencement of this Act make rules to be styled “District Court Rules” for carrying into effect this Part of this Act

(except the hearing by the Circuit Court of appeals from the District Court and the hearing by the High Court of cases

stated by the District Court), and may annul or alter such rules and make new rules. In particular rules may be made

for all or any of the following matters, viz., for regulating the sittings and the vacations and the districts of the Justices

and the places where proceedings are to be brought and the forms of process, summons, case stated, appeal or

otherwise, and the conditions which a party who requires a case stated or an appellant must comply with in civil cases

or in criminal cases or in licensing cases as the case may be and the practice and procedure of the District Court

generally including questions of costs …. ”

25. Following the establishment of the current District Court by s. 5 of the Courts (Establishment and Constitution) Act, 1961, s. 33

of the Courts (Supplemental) Act, 1961 provided inter alia for the transfer of the jurisdiction exercised by its predecessor court to the

new District Court, including the powers and provisions in the Act of 1924.

26. Section 34 of the Court (Supplemental Provisions) Act 1961 provides in simple terms as follows:-

“The jurisdiction which is by virtue of this Act vested in or exercisable by the District Court shall be exercised as regards

pleading, practice and procedure generally, including liability to costs, in the manner provided by rules of court made

under section 91 of the Act of 1924, as applied by section 48 of this Act.”

27. Thus the power to vest the jurisdiction to award costs had been granted by statute to the Rules Committee of the District Court.

28. Section 24 of the Interpretation Act 2005 provides that legislation conferring variations to an existing jurisdiction does not require

to expressly make provision for practice and procedure, and this may be done by rules of practice. Section 24 provides as follows:-

“Where an enactment confers a new jurisdiction on a court or extends or varies an existing jurisdiction of a court, the

authority having for the time being power to make rules or orders regulating the practice and procedure of the court

has, and may at any time exercise, power to make rules or orders for regulating the practice and procedure of that

court in the exercise of the jurisdiction so conferred, extended or varied.”

Support from authorities not directly on point

29. Some support for the proposition stated by O’Malley J., that the District Court may have a jurisdiction to award costs even in the

absence of an express power in the substantive statute, is found in The State (Hempenstall) v. Judge Shannon & Anor. [1936] IR 326

where the High Court held that in light of Rule 37(a) of the District Court Rules 1926, when a District justice ordered a husband to pay

to his wife a weekly sum for her maintenance pursuant to s. 1 of the Married Women (Maintenance in case of Desertion) Act, 1886,

the District justice could order the husband to pay a sum for costs despite the Act itself containing no provision for the payment of

costs.

30. Also, albeit in the context of the somewhat different Circuit Court Rules, in Inspector of Taxes v Arida [1995] 2 IR 230 the

Supreme Court held that a Circuit Court judge hearing an appeal pursuant to s. 429 of the Income Tax Act, 1967 had jurisdiction to

make an award of costs, notwithstanding there being no explicit provision in the Act so providing. Egan J. noted that it was

“inconceivable”, in the absence of any indication to the contrary, that the Oireachtas intended that the whole paraphernalia of

procedural regulation provided for by the Circuit Court Rules 1950, should be disapplied merely because a particular jurisdiction is

conferred upon the Circuit Court by legislation other than the Courts Acts.

31. Egan J. at p. 237 added:-

“It is interesting to note that if the jurisdiction to award costs were confined to cases in respect of which the jurisdiction

was vested in the Circuit Court by the Act of 1961, the Circuit Court could not at the moment award costs in the

following cases in which jurisdiction was given to the Circuit Court subsequent to the Act:—

1. The Landlord and Tenant (Ground Rents) Act, 1967. Section 22, sub-s. 1 of the Act enables appeals to be brought to

the Circuit Court against decisions of the County Registrar.

2. The Family Home Protection Act, 1976. Section 10, sub-s. 2 thereof gives the Circuit Court jurisdiction concurrently

with the High Court…..

Discussion on source of jurisdiction

32. I prefer the approach of O’Malley J. to the source of jurisdiction because she in my view correctly pointed to the fact that the

analysis may be fully undertaken only by regarding that the Rules Committee by statute does have power to determine jurisdiction for

costs. I consider that the analysis of Hedigan J. ought not to inform my decision as the focus of his judgment was the unusual

“watchdog” provision of the legislation in question. I can find no policy reason in the Act of 1990 which would suggest that costs

ought or ought not to be awarded to either the DPP or a respondent in an application under s. 4(5), and no possible argument in

public policy has been made by counsel for either party.

33. Further, I consider that the Supreme Court has implicitly recognized the correctness of the approach of O’Malley J., and note also

that the Attorney General in the High Court, and the HSE on appeal, also accepted that the power to award costs can be found

outside the primary legislation from which the District Court derives its jurisdiction to determine a substantive application.

34. I conclude therefore that the power of the District Court to award costs can be found in O. 51 r. 1, and accordingly that the

power can derive from the Rules and not merely from the substantive legalisation by which proceedings before it are maintained and in

which questions of the award of costs come to be considered. With that in mind I turn to consider the Rules and the characterization

of these proceedings.

The District Court Rules

35. Rules of court were made from time to time, and, for the purpose of this case stated, the relevant District Court Rules were

created by S.I. 93/1997, enacted on the 30th January, 1997, and it is accepted that the amendments made by S.I 17/2014 which

came into operation on the 3rd February, 2014 are not applicable.

36. The general rule with regard to costs is contained in O. 51 r. 1 which provides the power to award costs in civil proceedings as

follows:-

“Save as otherwise provided by statute or by Rules of Court, the granting or withholding of the costs of any party to

civil proceedings in the Court shall be in the discretion of the Court.”

37. I note that the power is expressed in the negative, such that the Rule creates a general discretionary power to award costs,

save where the power is excluded by statute or by the rules themselves.

38. That Rule has to be seen in the context of O. 36 r. 1 which provides that an order for costs may not be made against the DPP or

a member of An Garda Síochána in the case of summary jurisdiction:-

“Where the Court makes an order in any case of summary jurisdiction (including an order to ‘strike out’ for want of

jurisdiction) it shall have power to order any party to the proceedings other than the Director of Public Prosecutions, or

a member of the Garda Síochána acting in discharge of his or her duties as a police officer, to pay to the other party

such costs and witnesses' expenses as it shall think fit to award.”

39. Because O. 51 r. 1 expressly confines the jurisdiction to award costs to the District Court “civil proceedings” only, one needs to

consider whether the proceedings under s. 4(5) are “civil proceedings”.

40. “Civil proceedings” is defined in the interpretation section of the Rules as:-

"‘civil proceedings’ includes those suits or actions at law in which jurisdiction is conferred by any enactment upon the

District Court in civil cases as described in section 77A of the Courts of Justice Act, 1924 and in any enactment

extending or amending that section either expressly or by implication.”

41. Various amendments to the Courts Acts have defined “civil proceedings” and Counsel for the DPP argues that the Oireachtas has

clearly opted not to characterise an application under s. 4(5) of the Act of 1990 as “civil”. He argues in those circumstances that the

Oireachtas has evidenced an intention not to confer jurisdiction on the District Court to award costs in such proceedings.

42. I disagree. As the legislative scheme clearly in my view permits the Rules to vest the power to award costs, which it has done by

means of O. 51, r. 1; the Rules themselves must be the starting point for the analysis, and the absence of an express power in the

Act itself does not preclude the jurisdiction to award costs.

The characterisation of these proceedings in the District Court Rules 1997

43. The Rules are divided into three parts, Part I dealing with preliminary and general matters, Part II dealing with what is described

as “criminal proceedings” and Part III with what is described as “civil proceedings”. There are then miscellaneous matters and a

number of schedules.

44. Criminal proceedings are defined as follows:-

“‘criminal proceedings’ includes proceedings under Part II of these Rules”.

45. Part II of the Rules comprises Orders 13 to 38 inclusive. A number of the orders deal with matters obviously of a criminal nature

including the issue of warrants (O. 16), the procedure relating to bail (O. 18), remands (O. 19), and arrest (O. 17).

46. Counsel for the DPP argues that as a result of the placing of the application under s. 4(5) in Part II of the Rules, the Rules

themselves preclude the award of costs in the application.

47. Order 31 deals with proceedings under the Criminal Justice Act 1984 and the Act of 1990. An application for the retention of

records and samples under s. 4(5) of the Act of 1990 is directed by r. 6(1) to be brought by the issue and service of a notice in Form

31.5 of Schedule B to the Rules. Other Rules within O. 31 provide for service, lodgement of a statutory declaration of service, and

provides that the order of the court granting the application shall be in Form 31.6 of Schedule B.

Discussion

48. Thus the Rules themselves place the application under s. 4(5) of the Act of 1990 within the category of proceedings entitled

“criminal proceedings”. Order 51 which confers the jurisdiction on the court to grant costs in its discretion is found within Part III of

the Rules, and, as already noted, in the body of O. 51 r. 1 the jurisdiction to award costs lies only in “civil proceedings”.

49. I regard this distinction drawn by the Rules, and evident from the structure of the Rules themselves, as meaning that the Rules

Committee defined “criminal proceedings” as being other than “civil proceedings”, for the purposes of the interpretation of the Rules or

any power granted thereby. Thus I consider that the Rules Committee, having made this distinction, thereby excluded from the

jurisdiction to award costs proceedings which are characterised by the Rules as being “criminal proceedings”. I also consider that the

Rules Committee had the power by statute to determine the characterisation of the application under s. 4(5) of the Act 1990, and

that it did so for the purposes of the Rules, and ipso facto for the purpose of the granting of costs. The Rules vest a jurisdiction in

the District Court to award costs in civil cases only, and as the power to limit the class of matters in respect to which costs could be

awarded lay with the Rules Committee, the distinction drawn in the Rules themselves must govern the class of proceedings to which

the power to award costs applies.

50. Counsel for the respondent suggests that the inclusion of applications under s. 4(5) in Part II of the Rules was done for reasons of

“convenience”, and argues that the application would not be of a class that would normally or easily be so characterised. I agree, and

accept that proceedings under s. 4(5) of the Act 1990 do not obviously fall within the class of proceedings which would easily be

called “criminal”. The application cannot result in a conviction, the imposition of a fine or a term of imprisonment, the Rules Committee

has elected in the Rules of 1997 to categorise an application under the section as “criminal proceedings”, and to thereby exclude the

power to award costs to a party to such application. This classification does not change the nature of the application under s. 4(5),

nor affect the standard of proof in such, but for the purpose of the jurisdiction to award costs the proceedings are criminal.

51. Thus there is no jurisdiction to award costs in the application under s. 4(5).

Conclusion

52. I propose answering the questions in the case stated as follows:

1 No.

2. Does not arise.