Poptoshev v Director of Public Prosecutions and Others [No. 2]

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 22 January 2025
• Neutral Citation: [2025] IEHC 24
• Docket Number: Record No. 2024/155JR

Between:

Yavor Poptoshev

Applicant

and

The Director of Public Prosecutions, The Commissioner of An Garda Síochána, Ireland and The Attorney General

Respondents

[2025] IEHC 24

Record No. 2024/155JR

AN ARD-CHÚIRT

THE HIGH COURT

Costs rulling from judgment - exercise of discretion - cost order made

Facts: This cost ruling arose from the judgment in Poptoshev v DDP & ors [2024] IEHC in which Bradley J refused Mr Poptoshev's challenge to section 48(5)(b)(i), 49(1)(c) and 49(2) of the Criminall Justice (Theft and Fraud Offences) Act 2001. The Attorney General that these proceedings come within the general definition of public interest proceedings as defined in Little v Chief Appeals Officer [2024] IESC 53.

The principles in Little v Chief Appels Officer were paraphrased by the judge, as he noted these would vary from case to case including; "(i) the requirement that the proceedings involve a point of law of general public impportance which is either novel, or unclear or should be changed; (ii) while it is not a requirement that the applicant obtains no personal advantage, it is a relevant consideration that the issues in the litigation are likely to have a significant effect on the category of persons affected by the legal issues; (iii) the strength of the case for an exemption from costs is in proportion to the strength of the underlying claim, i.e., the point of law must be stateable and of real substance on the merits; (iv) the systemic importance to the State of having the law clarified; (v) a stable - if weak - case which arises in the contect of avoidably unclear legislation; (vi) in a 'test case' - i.e., one of more pathfinder cases selected from a larger cohort of pending claims for the purposes of determining issues of law that will govern all actions - a court may decide not to award costs against the claimant whose case is selected to go forward on this basis; (vii) whether the subject matter of the litigation is such that costs are likely to have a significant deterrent effect on the category of persons affeed by the legal issue."

It was argued on Mr. Poptoshev that there should be no order for costs. Bradley J held that in the exercise of his discretion that the Attorney General and the Director of Public Prosecutions were entitled to their costs against Mr Poptoshev. It was further ordered that in the event of an appeal, there would be a stay on theorder of costs until the determination of the appeal or until an earlier order the Court of Appeal may direct

Cost order made

(No. 2)

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 22 ^nd day of January 2025

INTRODUCTION

1 This is a costs ruling arising from the judgment delivered in Poptoshev v DPP & Ors [2024] IEHC 721, where I refused Mr. Poptoshev's challenge to sections 48(5)(b)(i), 49(1)(c) and 49(2) of the Criminal Justice (Theft and Fraud Offences) Act 2001.

2 Mr. Poptoshev had contended that these statutory provisions – which allow a member of An Garda Síochána acting under the authority of a warrant to operate any computer at a place which is being searched and to require any person at that place, who has lawful access to the information in any such computer, to furnish any password necessary to operate it and create an arrestable offence for failure to comply with such request – constituted a disproportionate interference with the privilege against self-incrimination and, therefore, infringed his constitutional rights.

3 Both parties agree that the position on costs in this type of public law challenge, where the applicant has not been successful, has been restated by the Supreme Court in the judgments of Hogan J. and Murray J. in Little v Chief Appeals Officer [2024] IESC 53.

4 It is accepted, on behalf of the Attorney General, that these proceedings come within the general definition of public interest proceedings defined by Murray J. in Little v Chief Appeals Officer [2024] IESC 53 at paragraphs 34, 35 and summarised at paragraph 68 of his judgment as including “ civil proceedings against the State, or an organ or agency of the State (including a statutory body) in which the plaintiff or applicant seeks relief in public law, whether in the form of a challenge to the validity, legality or compatibility having regard to the Constitution, European Law, the European Convention on Human Rights or the general principles of administrative law, in respect of an enactment, measure, act, omission or decision of a body of the defendant or respondent whether by way of plenary action, proceedings by way of judicial review, or statutory appeal”. 1

5 In his judgment, Murray J. referred to the court's discretion not to award costs, i.e., essentially directing no order as to costs, (and, in exceptional circumstances, to award costs), in this type or category of public law litigation where an applicant has been unsuccessful.

6 The question arising before me concerns the exercise of that discretion in the context of Mr. Poptoshev's challenge, which was determined in Poptoshev v DPP & Ors [2024] IEHC 721.

APPLICABLE PRINCIPLES

7 In Little v Chief Appeals Officer [2024] IESC 53, at paragraph 43, Murray J. observed that the reference in section 169(1) of the Legal Services Regulation Act 2015 (“the 2015 Act”) to ‘the particular nature and circumstances of the case’ reflected the gist of the case law before the enactment of the 2015 Act and preserved the power of a court “ to deprive a state defendant that has been entirely successful in their defence of an action of all or part of an...