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.

Barry McCaffrey & Anor v Chief Constable of Police Service of Northern Ireland & Ors
In Barry McCaffrey & Anor v Chief Constable of Police Service of Northern Ireland & Ors [2026] EWCA Civ 1374, the Court of Appeal (Bean LJ, with whom Edis LJ and Lewis LJ agreed) upheld a five-judge panel of the Investigatory Powers Tribunal, which had decided that it has no jurisdiction to award costs. Statutory tribunals have no inherent costs power, and neither RIPA nor the rules made under it refers to costs. The general words of section 67(7) could not carry a costs power, because each example of an “other order” listed there is a substantive order. The Secretary of State could make rules introducing a costs regime. The Tribunal cannot construct one without engaging in legislation, which would not be conducive to legal certainty. Practitioners cannot recover costs in the IPT, even where a respondent’s late disclosure causes ineffective hearings, unless rules or legislation change the position.

[54] “Section 67(7) of RIPA begins with very general words (“shall have power to make any such award of compensation or other order as they think fit”). 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.”

Citations

C7 v Secretary of State for the Home Department [2023] EWCA Civ 265; [2023] KB 317 The Court of Appeal held that SIAC had no inherent or implied power to award costs on an appeal under section 2B of the 1997 Act, and that where the rule-maker had not made a rule authorising costs, SIAC had no implied power to award them.

Dias v Chief Constable of Cleveland Police The IPT described itself as essentially a costs free jurisdiction; this judgment relied on it for the view that a general rule that costs follow the event would be widely regarded as unfair to applicants.

W v Public Authority The IPT held that, as a creature of statute, any power to award costs had to be drawn from statute, and that there was no power to award costs against a complainant who had withdrawn. The court treated it as of limited assistance.

Chatwani v National Crime Agency [2015] UKIPTrib 15_84_88-CH The IPT initially declined to award costs, holding legal costs not a recognised head of damages, but later ordered £10,000 for costs caused by persistent breaches of its order, with no reasons recorded.

Wilson v Commissioner of Police of the Metropolis [2019] 1 Costs LR 11 The IPT proceeded on the assumption that a costs jurisdiction existed but was to be exercised only in rare and highly unusual cases, and declined to make the orders sought.

Global Santa Fe Drilling (North Sea) Ltd v Lord Advocate [2009] CSIH 43; [2009] SC 575 The Inner House held that a sheriff could award expenses in a fatal accident inquiry against a party whose conduct was vexatious; the court agreed with the IPT that it did not assist the appellants.

Associated Society of Locomotive Engineers and Firemen (ASLEF) v United Kingdom (2007) 45 EHRR 34 The ECtHR awarded domestic tribunal costs under Article 41; the court said the decision seems to have been an outlier and preferred the reasoning in Dias.

Key Points

  • A tribunal established by statute has no inherent power to award costs; absent express provision, any costs power must be found in the wording of the statutory scheme. [53]
  • General words empowering a tribunal to make any other order it thinks fit will not be read as including a costs power where every listed example is a substantive order and costs could easily have been included but were not. [54]
  • Where it is unclear what form an implied costs power would take, whether a general discretion or a bespoke regime against one or both sides, constructing it is for the rule-maker; a tribunal doing so would be engaging in legislation rather than judicial decision-making, contrary to legal certainty. [55, 56]
  • In C7 the Court of Appeal held that where the rule-maker under a detailed statutory code has not made a rule authorising costs, the tribunal has no implied power to award them. [50]

[55] “The Appellants face the further difficulty that it is not clear what costs power they are seeking to imply. A general discretion to award costs without further detailed provision would suggest that costs should follow the event. But, as the IPT pointed out both in Dias and in the present case, such a general rule would be widely regarded as unfair to applicants since in most cases they do not have access to all the information which is placed before the Tribunal. A bespoke costs rule could be worded in a number of ways.”

Key Findings In The Case

  • The IPT has no jurisdiction to make orders for costs, and the appeal on that ground was dismissed. [53, 62]
  • Each of the six examples of other orders in section 67(7) of RIPA is a substantive order, and none of the 11 examples in section 69 refers to costs. [54]
  • It was unclear what costs power the appellants sought to imply, and a general discretion suggesting that costs follow the event would be widely regarded as unfair to applicants. [55]
  • The Secretary of State could make rules introducing a costs regime against either party or respondents only, but the IPT has no power to construct such a scheme. [56]
  • Global Santa Fe Drilling, a Scottish decision on expenses, did not assist the appellants. [52]

[56] “The Secretary of State could make Rules introducing a similar regime for the IPT, whether against either party or against respondents only. But that is not a scheme which the IPT has any power to construct. As the IPT said, the Tribunal would be engaging in legislation rather than judicial decision-making; and such an invented power would not be conducive to legal certainty.”

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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