AC-2024-LON-000883 - [2025] EWHC 2019 (Admin)

The question whether the Investigatory Powers Commission (“IPT”) had the power to award costs arose in McCaffrey & Anr v Chief Constable of the Police Service of Northern Ireland & Ors [2025] UKIPTrib 2 which was decided by a specially convened constitution of five senior IPT members (Lord Justice Singh P, Lord Boyd of Duncansby VP, Lady Carmichael, Johnson and Chamberlain JJ). Giving the judgment of the Tribunal, Singh LJ held that the IPT’s statutory jurisdiction did not make provision for the award of costs.

Plainly, the IPT was considering its own powers within the relevant statutory framework: the Regulation of Investigatory Powers Act 2000 and the rules made under it. That framework is not under consideration in the present claim. Nevertheless, Singh LJ’s judgment is illuminating. In particular, he observed at paragraph 69 that there was no express reference to costs orders in the governing statute or rules. Where Parliament intended to confer costs powers on a tribunal, or at least to confer the power to make rules enabling such orders to be made, it has done so expressly as in section 13 of the Employment Tribunals Act 1996.

In the context of the IPT provisions too, the effect of assuming a costs jurisdiction would have been a power to award costs against only one side in litigation. Singh LJ held (at para 71) that “[a]lthough it is possible that that is what Parliament intended, it would be surprising that that has not been spelt out clearly in the terms of the governing legislation.” He reiterated the point later in the same paragraph when he said that it would be expected that Parliament would set out clearly and on the face of the legislation an asymmetry in the power of the IPT to award costs.

In the following paragraphs of the judgment, Singh LJ considered matters in a broader constitutional context and held:

“74.

… If the [IPT] does have power to award costs, it is difficult to see any principled basis on which that could be limited to orders only against respondents. In effect the Tribunal would be engaging in legislation, rather than judicial decision-making. This would also not be conducive to the interests of legal certainty. Applicants and indeed respondents are entitled to know what the criteria will be for the award of costs but those criteria do not appear in any legislation.

75.

In our view, if there is to be a jurisdiction to award costs conferred on the Tribunal, it would be better for this to be achieved either by rules made by the Secretary of State or in primary legislation enacted by Parliament. This would have the merit of creating legal certainty, so that everyone concerned would know what the criteria are for the award of costs. It would make it clear whether the power to award costs could only be exercised against respondents or whether it would also be available against applicants. It would also make it clear whether the Tribunal should have a general discretion to award costs or whether it should be confined to situations where a party had acted unreasonably.

76.

This would also have the merit that any legislative change would only be made after there had been the opportunity for public consultation. The Tribunal is not institutionally well-equipped to engage in setting up a costs regime” (emphasis added).

Singh LJ’s reasoning in these paragraphs is based on broader conceptions of legal certainty and respect for the separate functions of the legislature, the executive and the judiciary. We agree that these important principles are most effectively achieved by the formulation of costs powers by Parliament in primary legislation with responsibility for implementation falling to the executive in making rules.

Finally in this section of our judgment, we should refer to SIAC’s judgment in H5 & Ors v Secretary of State for the Home Department (Appeal No.: SC/204/2023; 29 January 2024) which considered the effect of rule 11A. The issue before SIAC (Johnson J, Upper Tribunal Judge Blundell and Mrs Jill Battley) was whether a hearing in a review brought under section 2F should be vacated after SIAC had given a notice under rule 11A but where the special advocates nevertheless wanted to advance arguments in H5’s favour. SIAC considered whether the effect of the withdrawal of the Secretary of State’s decision was that SIAC had no further jurisdiction “save possibly for costs” (para 15). It concluded that neither section 2F(3) nor 2F(4) permitted SIAC to assume jurisdiction to make a decision about a review which sought to challenge a decision that had been withdrawn and so was no longer extant.

For present purposes, the key passage of SIAC’s judgment relates to section 2F(4) which (as we have already indicated) is in materially the same terms as section 2D(4). SIAC held (at para 18) that:

“…[S]ection 2F(4) is predicated on SIAC first deciding that the Secretary of State's decision should be set aside. There is no question of SIAC deciding that the decision should be set aside, because the decision has been withdrawn. There is therefore nothing to set aside…”

SIAC concluded at paragraphs 22 and 28 of H5 that the effect of the withdrawal of the decision under challenge and the impact of rule 11A was that the proceedings were at an end, subject to any issues as to costs. SIAC’s concluded view as to its costs powers was not expressed in the judgment. However, its conclusion that rule 11A deprives SIAC of other aspects of its jurisdiction is hard to resist. The conclusion rests on the clear proposition that SIAC’s jurisdiction cannot be exercised in relation to proceedings that have, by virtue of rule 11A, already been brought to an end.