Court of Appeal Rejects Journalists’ Bid for Legal Costs in Landmark IPT Ruling

What was the case about?

In Barry McCaffrey and Anor v Chief Constable of Police Service of Northern Ireland and Others [2026] EWCA Civ 1374, handed down on 29 October 2026, the Court of Appeal considered whether the IPT had power to order the PSNI to pay the journalists’ legal costs.

The appellants, Barry McCaffrey, a senior reporter with The Detail, and documentary producer Trevor Birney, made a film entitled No Stone Unturned about the 1994 murders of six unarmed men at the Heights Bar in Loughinisland, County Down. After the film referred to two documents that had not been disclosed by the Police Ombudsman for Northern Ireland, the PSNI commissioned an investigation into the apparent leak.

Search warrants were granted in August 2018 and executed at the journalists’ homes and business premises. Both men were arrested on suspicion of theft and an offence under the Official Secrets Act 1989. A subsequent Divisional Court in Northern Ireland held that the journalists had been subjected to unlawful search warrants, finding serious deficiencies in the warrant proceedings and no overriding public-interest requirement justifying interference with the protection of journalistic sources.

The journalists later brought proceedings under the Human Rights Act 1998 and complaints before the IPT. In its substantive decision of 17 December 2024, the Tribunal found that the PSNI had acted unlawfully in certain respects, quashed a Directed Surveillance Authorisation and awarded each appellant £4,000 compensation.

Why did the journalists seek costs?

The journalists sought the wasted costs arising from two ineffective hearings in February and May 2024. The judgment records that the proceedings had been affected by late and inadequate disclosure from the PSNI, and that the Tribunal had reserved the question of costs when those hearings were vacated and again when it handed down its substantive judgment.

Their application argued that the broad wording of section 67(7) of the Regulation of Investigatory Powers Act 2000 (RIPA), which allows the IPT to make an award of compensation or another order it considers appropriate, included the power to award costs where justified.

The PSNI opposed the application, arguing both that the facts did not justify a costs order and that the Tribunal had no jurisdiction to make one. The other respondents were also invited to address the jurisdiction issue because of its wider significance for parties appearing before the IPT.

What did the Court of Appeal decide?

The Court of Appeal, constituted by Lord Justice Bean, Lord Justice Edis and Lord Justice Lewis, dismissed the appeal. Lord Justice Bean gave the leading judgment, with the other two judges agreeing.

The court first concluded that it had jurisdiction to hear the appeal under section 67A of RIPA. It rejected the argument that the Tribunal’s determination had ended with its substantive judgment in December 2024, because the question of costs had expressly been reserved. The decision not to make a costs order therefore formed part of the Tribunal’s determination of the complaints.

On the substantive issue, however, the court agreed that the IPT had no power to award costs under the existing statutory framework. The general wording of section 67(7) could not be read as creating a costs jurisdiction when the legislation and Tribunal rules contained no express provision for one.

The court also rejected the alternative argument that the compensation awards should be increased to reflect the journalists’ legal costs. It found no error of law in the IPT’s decision not to increase the sums already awarded.

Why could the IPT not award costs?

The court emphasised that the IPT is a statutory tribunal and has no inherent jurisdiction. Its powers must therefore be found in RIPA or in rules made under that legislation.

Although section 67(7) gives the Tribunal a broad power to award compensation or make other orders, the examples listed in the provision concern substantive remedies. The court noted that an order for costs could have been expressly included but was not.

The Investigatory Powers Tribunal Rules 2018 also contain no express provision for costs. The court considered that implying a general costs power would create uncertainty about when costs could be awarded, against whom, and according to what criteria. It could also produce an asymmetrical arrangement in which costs might be ordered against respondents but not applicants, without clear wording from Parliament.

Any costs regime for the IPT must be created through an appropriate legislative or rule-making process, rather than judicially implied.

The judgment recognised that the Secretary of State could potentially introduce rules establishing a costs regime under the rule-making power in section 69 of RIPA. Alternatively, Parliament could provide for such a power through primary legislation. The court considered that this would allow the relevant criteria and safeguards to be made clear.

Could compensation be increased instead?

The journalists also argued that, if the IPT could not make a separate costs order, it should increase the compensation awarded to reflect the costs they had incurred. They relied on the principle of just satisfaction under the European Convention on Human Rights.

The Court of Appeal accepted that where a respondent’s conduct of proceedings prolongs or aggravates a violation of an applicant’s human rights, that conduct may justify a somewhat greater monetary award. However, such an adjustment is not the same as a costs order and does not simply reimburse the legal costs incurred.

In this case, the IPT had already awarded £4,000 to each appellant for the relevant violation. The Court of Appeal found that its decision not to increase those awards was not legally erroneous and dismissed the second ground of appeal.

What does the judgment mean?

The decision clarifies the limits of the IPT’s powers under the current statutory framework. Even where a party argues that the conduct of a public authority has caused unnecessary legal expenditure, the Tribunal cannot make a costs order unless it has a legal power to do so.

For solicitors and litigators advising clients in proceedings before the IPT, the judgment is an important reminder to distinguish between compensation for a human rights violation and recovery of litigation costs. A higher compensation award may be possible where litigation conduct has aggravated the injury, but it cannot be used simply as a substitute for a costs order.

The court also identified a possible route for reform. A costs regime could be introduced through rules made by the Secretary of State or through primary legislation. Until such a change is made, the IPT remains without jurisdiction to award costs under the existing provisions.