Court Of Appeal Confirms IPT Cannot Award Costs | RIPA Examples Are All Substantive Orders | Reform Needs Rules Or Statute

In Barry McCaffrey & Anor v Chief Constable of Police Service of Northern Ireland & Ors [2026] EWCA Civ 1374, the Court of Appeal upheld the Investigatory Powers Tribunal’s ruling that it has no power to award costs. Practitioners advising on IPT costs should proceed on the footing that expenditure wasted by a respondent’s conduct is irrecoverable until the Secretary of State makes rules or Parliament legislates.

Background

The appellants, Mr McCaffrey and Mr Birney, are journalists. They brought proceedings under section 7(1)(a) of the Human Rights Act 1998, and complaints to the IPT, on the basis that they thought it likely that the warrants executed against them were not the only attempt to identify their confidential sources [8]. The IPT found that the PSNI had acted unlawfully in certain respects, quashed a Directed Surveillance Authorisation and awarded each appellant £4,000 [2, 9].

Late and inadequate disclosure by the PSNI made two hearings, in February and May 2024, ineffective. On each occasion the IPT reserved costs, and it did so again when handing down its substantive judgment on 17 December 2024 [10]. The appellants did not seek their costs in full; they sought only the wasted costs of the two ineffective hearings [11]. A five-judge panel of the IPT then decided that it had no power to award costs [1].

Costs Issues Before the Court

The question was whether the IPT has jurisdiction to make orders for costs [1]. The first ground of appeal contended that the IPT erred in law in finding that it had no jurisdiction to award costs under section 67(7) of the Regulation of Investigatory Powers Act 2000 (RIPA) [27]. Section 67(7) empowers the IPT, on determining any proceedings, complaint or reference, to make any award of compensation or other order it thinks fit, and lists examples of those other orders [18].

The Parties’ Positions

The appellants submitted to the IPT that the power in section 67(7) to make any “other order as they think fit” was broadly worded and included a power to award costs where appropriate [12]. They added that there should be no presumption that costs follow the event, and that orders against public authorities should be confined to cases of unreasonable conduct [12].

The PSNI opposed an order both on the facts and on the ground that the IPT had no jurisdiction to make it [14]. The other respondents, invited by the IPT to address jurisdiction, generally followed the PSNI [15]. Before the IPT, Mr Jaffey, for the appellants, accepted that his construction would permit costs orders only against respondents, and suggested that the interim order power in section 67(6) could cover earlier stages [23].

The Court’s Decision

Bean LJ, with whom Edis LJ and Lewis LJ agreed, dismissed the appeal [62, 63, 64]. His starting point was common ground: tribunals established by statute have no inherent power to award costs, and neither RIPA nor the rules made under it refers to costs expressly. The appellants therefore had to squeeze a power out of the wording of sections 67 and 68 of RIPA, which in his view was impossible [53].

The IPT had held that its powers were those set out, expressly or impliedly, in RIPA and the rules, and the Investigatory Powers Tribunal Rules 2018 contain no express costs provision [21, 23]. Bean LJ also set out this court’s decision in C7 v Secretary of State for the Home Department, where Elisabeth Laing LJ held that, absent a rule made by the Lord Chancellor authorising costs, SIAC had no implied power to award them [50].

On section 67(7), Bean LJ held that the opening words could not carry the weight placed on them. As he put it: “It goes on to list six categories of “other order” that may be made by the Tribunal; but each of the six examples given is a substantive order. It would have been easy enough to include in this list an order for costs; but that was not done.” Section 69 was no different: none of its 11 examples of rule-making subjects refers to costs [54].

Bean LJ identified a further difficulty: it was not clear what costs power the appellants sought to imply. He observed that “A general discretion to award costs without further detailed provision would suggest that costs should follow the event.” As the IPT had pointed out in Dias and in this case, such a rule would be widely regarded as unfair to applicants, who in most cases lack access to all the information before the Tribunal [55].

The IPT had made the asymmetry point directly. Mr Jaffey’s construction would create a power to award costs against respondents only; Parliament might have intended that, but the IPT would have expected it to be spelt out clearly in the legislation [23]. A power arising only on determination would also leave no costs power earlier, for example on withdrawal, and an interim order is not a final costs order made at an interim stage [23].

On legal certainty, Bean LJ adopted the IPT’s analysis. The Secretary of State could make rules introducing a regime “whether against either party or against respondents only. But that is not a scheme which the IPT has any power to construct.” Otherwise the Tribunal would be engaging in legislation rather than judicial decision-making, and an invented power would not be conducive to legal certainty [56].

The IPT had reasoned that it is possible that the Secretary of State could make rules creating a costs regime under section 69(1)(b), costs being incidental to or arising out of proceedings, but that no such rules have been made [23]. In its postscript it described the outcome as not entirely satisfactory, while leaving any change to the Secretary of State or Parliament [24].

The five-judge panel declared that any earlier IPT decision holding that it had power to award costs was wrong [23]. In Chatwani v National Crime Agency the Tribunal had ordered £10,000 for costs caused by persistent breaches, with no reasons recorded [39], and in Wilson v Commissioner of Police of the Metropolis it had assumed a jurisdiction for rare cases [44]. Bean LJ agreed with the IPT that Global Santa Fe Drilling, a Scottish decision on expenses, did not assist the appellants [52].

Practical Implications

This Court of Appeal decision upholds a specially constituted five-judge panel, so practitioners should treat the absence of any IPT costs jurisdiction as settled unless rules are made under section 69 of RIPA [23, 56]. Claimant advisers should tell clients at the outset that their costs of IPT proceedings are irrecoverable, including costs thrown away by hearings rendered ineffective by a respondent’s disclosure failures [10, 11].

The position cuts both ways. Because no IPT costs order can be made at all, a complainant faces no adverse costs exposure, and a respondent public authority faces none for its conduct of the proceedings. Retainer and funding arrangements should be priced on the footing that no costs will be recovered from the other side, whatever the outcome.

Arguments that a costs power can be implied from section 67(7), or built from the interim order power in section 67(6), should not now be advanced: the court found it impossible to find a power in sections 67 and 68, and the IPT rejected the interim order route [23, 53]. The Chatwani costs order cannot be relied on as precedent [23, 39]. Those seeking change should direct representations to the Secretary of State, whose rule-making power the court recognised could introduce a regime [56].

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