Antony Bates, R (on the application of) v Highbury Corner Magistrates’ Court

Lady Justice Whipple and Lady Justice Yip : Introduction

1. In a judgment dated 31 January 2025 ( R (Bates) v Highbury Corner Magistrates’ Court & Westhead [2025] EWHC 184 (Admin): “the substantive judgment”), Yip J determined judicial review proceedings in favour of the Claimant, Mr Antony Bates, resulting in the quashing of a summons which had been issued against him in the Highbury Corner Magistrates’ Court and of the decision to send him to the Crown Court for trial. The summons had been issued on the application of the Interested Party, Mr James Westhead, acting as a private prosecutor. The Court assembled as a Divisional Court (Whipple LJ and Yip J) to determine whether and to what extent the Claimant is entitled to recover his costs from the Interested Party.

2. The Claimant makes two applications: i) An application for the costs incurred in bringing the judicial review proceedings pursuant to the High Court’s general discretion to award costs under section 51(1) of the Senior Courts Act 1981 (“ the 1981 Act ”). ii) An application for ‘costs thrown away’ in the criminal proceedings in the magistrates’ court pursuant to section 19 of the Prosecution of Offences Act 1985 (“ the 1985 Act ”) and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 (“the 1986 Regulations”).

3. The application for costs in the judicial review proceedings raises a point of law concerning the High Court’s power to award costs in criminal matters, which was the primary focus of the hearing before us.

4. The costs sought in respect of the criminal proceedings have been quantified in the total sum of £235,922.11 (£199,601.76 plus VAT). Although the final total includes some substantial write-downs, we note that the schedule of costs includes over 400 hours of solicitor fee-earners’ time in addition to substantial fees for leading and junior counsel.

5. The Claimant has not yet served a schedule quantifying the costs of the judicial review proceedings, pending the Court’s determination as to whether, in principle, it will make a costs order under section 51 of the 1981 Act . The Claimant’s position

6. The Claimant, represented by Mr Adrian Darbishire KC and Mr Stuart Biggs KC, contends that the law took a wrong turn in Murphy v Media Protection Services [2012] EWHC 529; [2013] 1 Costs LR 16 and subsequent cases following Murphy . The principle emerging from that line of cases (“the Murphy principle”) is that the High Court will only exercise its general discretion under section 51 of the 1981 Act to make an order for inter partes costs in a criminal cause in exceptional cases. Exceptionality has been narrowly defined for these purposes. The Claimant contends that Murphy was decided per incuriam and should no longer be followed. Rather, the Claimant submits that in relation to the judicial review proceedings, the court should exercise its discretion under section 51 in the usual way, guided by CPR Part 44, the starting point being that the successful party (Mr Bates) should receive his costs from the unsuccessful party (Mr Westhead).

7. In relation to the costs of the criminal proceedings below, the Claimant invites this court to exercise the power vested in the magistrates’ court pursuant to section 19 of the 1985 Act and regulation 3 of the 1986 Regulations. That power allows the magistrates’ court to make an order for costs inter partes if satisfied that one party has incurred costs as a result of an unnecessary or improper act by another party to the proceedings. The Claimant contends that the findings in the substantive judgment can lead only to the conclusion that Mr Westhead (the prosecutor) should be ordered to pay the costs Mr Bates (the defendant) incurred in the criminal proceedings. In those circumstances, we are invited to make such an order, exercising the powers of a District Judge (Magistrates’ Courts) pursuant to section 66 of the Courts Act 2003 , rather than remitting the application to the magistrates’ court. The Interested Party’s response to the applications

8. Mr Westhead, who is not legally represented, resists both applications. In his written submissions on costs, he sought to reargue many of the points he had advanced at the substantive hearing. However, he understood that the costs hearing did not afford an opportunity to revisit the findings already made in the substantive judgment and that the costs applications would be determined having regard to those findings. Aside from his continued insistence that Mr Bates and others connected to hibu plc, the company in which Mr Westhead had been a shareholder when it had gone into administration, had committed fraud, Mr Westhead made the following points: i) He had been let down by the magistrates’ court and other organisations. ii) The costs sought were excessive. The ‘legal firepower’ employed in having two King’s Counsel and four or five employees of Herbert Smith Freehills Kramer at court was excessive and a tactic to rack up costs against him. iii) He had agreed to the quashing of the criminal proceedings albeit he could not agree to a proposed consent order as, in his view, the statement of reasons attached to it contained material untruths. iv) He should not be penalised in costs for an error of judgment on the part of the District Judge. v) Bringing criminal proceedings against Mr Bates was in the public interest.

9. Mr Westhead concluded his written submissions by “politely asking whether the Courts have power to make payment to Hibu Shareholders Group to launch the next application for a summons to be issued for a private prosecution of all four of the fraud perpetrators …”. He ended his oral submissions by telling us that his real concern was that if the costs went against him it would “break [his] spirit to carry on the fight for justice”. He did though accept that he might have to pay some costs but “only up to the magistrates’ level.”

10. Mr Westhead did not seek to address us on the legal principles underpinning the applications. Mr Darbishire helpfully identified the legal issues likely to arise and proposed that the Court may wish to invite the Attorney-General to appoint an Advocate to the Court to avoid the risk of the arguments on the Murphy principle being decided without the Court hearing relevant legal argument which might be contrary to the Claimant’s submissions. Further, the Claimant undertook not to seek the additional costs of pursuing the costs arguments from Mr Westhead. The Advocate to the Court’s stance on the Murphy principle

11. We are grateful that the Attorney-General accepted the Court’s invitation to appoint an Advocate to the Court and to Mr Paul Jarvis KC, who fulfilled that role providing us with written and oral submissions on the Murphy principle. Mr Jarvis invited us to conclude that the Murphy principle was not wrong in law and that the High Court should not depart from it. The issues arising

12. It follows from the above that we must first determine whether we should, in principle, make an inter partes costs order in the judicial review proceedings relying on the High Court’s general discretion in relation to costs contained in section 51(1) of the 1981 Act . That involves consideration of the following: i) Should the Murphy principle be followed? ii) In judicial review proceedings concerning a criminal cause or matter, is the High Court able to make an award of costs in exercise of its discretion under section 51(1) only in exceptional circumstances? iii) If the Court is entitled to exercise its discretion under section 51 to make an inter partes costs order, should it exercise that discretion so as to order that the Interested Party pay all or some portion of the Claimant’s costs?

13. If we decide that there should be a costs order in principle, we will have to go on to consider how the amount to be paid should be determined.

14. In relation to the criminal proceedings, we must decide: i) whether it is appropriate for this court to use section 66 of the Courts Act 2003 to invoke the power invested in a District Judge to make an order for the payment of costs pursuant to section 19 of the 1985 Act and regulation 3 of the 1986 Regulations; ii) if so, whether such an order is appropriate on the facts of this case; iii) if such an order is appropriate, whether the amount of costs to be paid should be summarily assessed or determined in some other way. The costs of the judicial review proceedings Section 51 of the Senior Courts Act 1981

15. Section 51 of the 1981 Act provides (so far as material): “(1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in – (a) the civil division of the Court of Appeal; (b) the High Court; (ba) the Family Court; and (c) the county court, shall be in the discretion of the court. … (3) The court shall have full power to determine by whom and to what extent costs are to be paid. … (5) Nothing in subsection (1) shall alter the practice in any criminal cause, or in bankruptcy.” The Civil Procedure Rules

16. The Civil Procedure Rules are expressed to apply to all proceedings in the County Court, the High Court and the Civil Division of the Court of Appeal, save for certain specified exceptions, which do not apply to this case (see CPR 2.1).

17. CPR Part 44 contains general rules about costs and provides a regime under which the court can determine how to exercise the broad discretion as to costs provided by section 51(1) and (3) of the 1981 Act .

18. CPR 44.2(1) provides that the court has discretion as to (a) whether costs are payable by one party to another; (b) the amount of those costs; and (c) when they are to be paid. CPR 44.2(2) states: “If the court decided to make an order about costs – (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but (b) the court may make a different order.” Section 28 A of the Senior Courts Act 1981

19. When the High Court determines the question arising on a case stated by a magistrates’ court or the Crown Court, section 28 A(3) of the 1981 Act gives the High Court power to “make such other order in relation to the matter (including as to costs) as it thinks fit.” That provision is not applicable to this case which concerns judicial review proceedings rather than an appeal by case stated. However, it is relevant in considering some of the authorities upon which the parties rely. The criminal costs regime and its application in the High Court

20. Part II of the Prosecution of Offences Act 1985 makes provision for costs orders in criminal proceedings. Section 16 provides for the payment of defence costs out of central funds (“a defendant’s costs order”). Section 16(5) (a) gives a Divisional Court of the Queen’s Bench (now King’s Bench) Division power to make a defendant’s costs order where the court determines proceedings in a criminal cause or matter. Section 16 A, which was inserted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 , places a significant restriction on the scope of a defendant’s costs order by specifying that such an order may not include an amount in respect of legal costs unless certain conditions are met.

21. Section 17 allows a court to make an order for the payment of prosecution costs out of central funds in any proceedings in respect of an indictable offence and in any proceedings before a Divisional Court of the King’s Bench Division or the Supreme Court in respect of a summary offence. However, no such order may be made in favour of a public authority. Accordingly, an application for an order under that section is only open to a private prosecutor.

22. Section 18 allows a magistrates’ court, the Crown Court and the Court of Appeal to make an order that the accused pay the prosecutor’s costs. Section 19 makes provision for inter partes orders in relation to costs incurred as a result of an unnecessary or improper act or omission. Sections 18 and 19 do not apply in the High Court.

23. It follows that the only provisions within Part II of the 1985 Act which may apply in the High Court are those in sections 16 and 17. Those powers may be exercised only when the High Court sits as a Divisional Court of the King’s Bench Division. They may be exercised only in favour of the accused ( section 16 ) or a private prosecutor (section 17). If an order is made, the costs will be paid from central funds rather than by the unsuccessful party. The recoverable defence costs are significantly restricted by section 16 A. The Murphy principle

24. Murphy involved an appeal by case stated. Mrs Murphy was prosecuted and convicted in the magistrates’ court of offences under section 297 of the Copyright, Designs and Patents Act 1988 relating to the use of a non-UK service to stream Premier League football matches in the public house which she managed. The High Court proceedings were complex and protracted. After a reference to the Court of Justice of the European Union, they concluded with the Divisional Court quashing the convictions. In dealing with the application for costs, Stanley Burnton LJ said [3]: “The principal issue that falls for decision is whether the parties’ costs should be determined under what we may call the civil costs regime or the criminal costs regime.”

25. On this issue he said: “14. Neither Mr Howe QC nor Mr Mellor QC was able to make any submission as to the criteria to be applied by this court for the purpose of deciding whether to apply the civil costs regime or the criminal costs regime. Nor did they refer to any authority that might guide us.

15. Clearly, save in exceptional cases, prosecutions and appeals in criminal cases should be and will be subject to the criminal costs regime. However, the present case is unusual. …”

26. Stanley Burnton LJ went on to detail the unusual features of the case. The prosecution was brought to protect a very substantial commercial interest and was treated by the parties as a test case involving substantial legal resources on both sides. The hearings were said to have been “conducted in a manner indistinguishable from a hearing in the Chancery Division or before the Civil Division of the Court of Appeal in which substantial sums were in issue.” The proceedings were part of a broader campaign to protect a private interest. The court found that those unusual circumstances justified the application of the civil costs regime. The development of the law since Murphy

27. The decision in Murphy was followed by a Divisional Court (Foskett J and Carr J) in Hull and Holderness Magistrates’ Court v Darroch [2014] EWHC 4184 (Admin) . The court accepted, albeit with some reservation, that the High Court had power to make a third-party costs order under the civil regime in relation to the costs arising from a criminal prosecution in the magistrates’ court. However, it found that the test of exceptionality identified in Murphy was not met and the case should remain subject to the criminal costs regime in the usual way. Although the third party (the Football Association Premier League) stood to gain financially from a successful prosecution, the only costs for consideration were those incurred below and the proceedings in the magistrates’ court were not so unusual as to be exceptional.

28. The Divisional Court’s decision was appealed to the Court of Appeal, see Darroch & Darroch v Football Association Premier League Limited [2016] EWCA Civ 1220 (“ Darroch CA ”). The court concluded that it did not have jurisdiction to hear the appeal since it was an appeal against a judgment in a criminal cause or matter. However, having heard argument and on the basis that the subject of the appeal was of practical importance, the Court considered the merits, acknowledging that what was said was necessarily obiter. Burnett LJ (with whom Hallett LJ and Sir Brian Leveson P agreed) concluded, contrary to the approach taken in Murphy , that there was no power under section 51 of the 1981 Act (whether on an appeal by way of case stated or a claim for judicial review) to make a civil costs order in respect of costs incurred in the underlying proceedings in the Crown Court or magistrates’ court. Given the limits of the application in that case, Darroch CA did not specifically address the Murphy test of exceptionality as it applied to the costs of proceedings before the High Court.

29. Further caselaw since Darroch has supported the Murphy principle, suggesting that civil costs will only be awarded in respect of criminal proceedings in the High Court in exceptional cases. Exceptionality has been tightly controlled. Examples include: (a) Lord Howard of Lympne v DPP [2018] EWHC 100 (Admin) (b) R (Bahbahani) v Ealing Magistrates’ Court [2019] EWHC 1385 (Admin) (c) London Borough of Barking & Dagenham v Argos [2022] EWHC 2466 (Admin) (d) R (DPP) v Manchester City Magistrates’ Court [2024] EWHC 111 (Admin) (e) R (AB) v Uxbridge Youth Court [2023] EWHC 2951 (Admin) (f) Morjaria v Westminster Magistrates’ Court [2024] EWHC 178 (Admin) (g) R (DPP) v Northampton Magistrates’ Court [2024] EWHC 2860 (Admin) (h) IPE Marble Arch Limited v Moran [2024] EWHC 2913 (Admin) (i) Lewis v Francis & Borie [2025] EWHC 238 (Admin)

30. In most of those cases, the court has not been invited to go back to first principles or to say that Murphy was wrongly decided. This area of law is characterised by cases which have been decided without full argument, often without the citation of all relevant authorities and frequently on the basis of concessions.

31. In Bahbahani , it was argued that Murphy should not be followed for three reasons: (i) the application in Murphy extended to the costs in the courts below whereas the application in that case was limited to only the High Court costs; (ii) the relevant passage in Murphy referred to “prosecutions and appeals in criminal cases” whereas claims for judicial review proceedings were civil proceedings; and (iii) the decision in Darroch CA found “the whole basis of Murphy was wrongly decided” and did not endorse any test of exceptionality.

32. The Divisional Court (Holroyde LJ and Dove J) rejected those arguments. The court said that the judgments in Darroch CA did not include any explicit or implied disapproval of the principle that the criminal costs regime should be applied (within its proper limits) unless there are exceptional circumstances making it appropriate for the High Court to make an award under the civil costs scheme. There was no relevant distinction between an appeal by way of case stated and a claim for judicial review in a criminal cause or matter. The court was not persuaded that the principle in Murphy was wrong or that it should not be followed. There were no exceptional reasons for applying the civil costs regime.

33. In submitting that this Court should not depart from the Murphy principle, Mr Jarvis acknowledged that the judgment of Stanley Burnton LJ which is the foundation stone of that principle was extremely brief. Paragraph 15 of the judgment merely states the principle without providing the rationale for it. However, Mr Jarvis said that Stanley Burton LJ appeared to have regarded the principle as clear and suggested that the rationale emerges from the cases which followed. He submitted that the best example of that was R (AB) v Uxbridge Youth Court , in which Linden J described the Murphy principle as well-established before saying [34]: “… in my view the Court in Murphy was saying no more than this: Parliament has enacted a framework for the determination of costs in civil cases and it has enacted a framework for the determination of costs in criminal cases. Each identifies the orders which may be made and the statutory conditions which require to be satisfied if they are to be made. Parliament intended that costs would only be awarded in a criminal cause or matter where such an award is in accordance with the statutory provisions applicable to such causes or matters. The proceedings do not lose their criminal character when they are subject of an appeal or a claim for judicial review in the High Court, and nor do they for the purposes of the determination of costs of such proceedings. So it would only be in exceptional circumstances that a court would use its powers under section 51(1) of the Senior Courts Act to make an award of costs in a criminal case which would not be available under the provisions applicable to criminal cases.”

34. Linden J also observed that, as Darroch illustrates, the category of case in which there may be a departure from the criminal costs regime in a criminal cause or matter applying the Murphy exception is very narrow indeed. That description of the exception as being “very narrow indeed” was adopted by a Divisional Court (William Davis LJ and Stacey J) in Morjaria . The court noted that in none of the cases since Murphy has a court found the circumstances to be exceptional so as to permit the civil costs regime to apply. Cases which do not support the Murphy principle

35. Mr Darbishire submitted that cases decided before and after Murphy demonstrate that the High Court has routinely made orders for costs in judicial review proceedings under the civil regime, even where the underlying subject is criminal. He argued that the High Court’s power to do so had existed for over a hundred years prior to Murphy being decided. He took us to R v Chief Magistrates, ex parte Osman (1990) Cr App R 313. The Divisional Court in that case (Lloyd LJ and French J) was faced with an application for costs by the Government of Hong Kong for an unsuccessful application for habeas corpus brought by Mr Osman following an order for his committal to await extradition to Hong Kong. It was rightly conceded that habeas corpus proceedings were proceedings in a criminal cause or matter. It was argued on behalf of Mr Osman that there was no jurisdiction to award costs against him, the only relevant power was the power under the 1985 Act to order costs out of central funds.

36. Lloyd LJ rejected that submission, saying that on any view the proceedings in the Divisional Court were proceedings in the High Court coming within the meaning of section 51(1) of the 1981 Act . It was unsuccessfully argued on behalf of Mr Osman that the effect of section 51(1) was “cut down” by section 51(2) . As the 1981 Act was originally enacted, section 51(2) provided: “Nothing in sub-section (1) shall alter the practice in any criminal cause or matter, or in bankruptcy.” That provision is now found in section 51(5) , albeit the words “or matter” do not appear in the amended version. No reason for the change from “criminal cause or matter” to simply “criminal cause” has been identified to us and it is not suggested that there is any material distinction in effect between section 51(2) as it was and section 51(5) as it is now.

37. Having found that these were proceedings in a criminal cause or matter, Lloyd LJ said: “Then comes the question – and it is the crucial question in the case – what is the practice in habeas corpus with regard to costs? Or rather, what was the practice when the 1981 Act was passed?” Referring to earlier cases in which costs had been ordered in habeas corpus proceedings, Lloyd LJ said there was sufficient evidence to establish a practice of awarding costs in the Divisional Court, saying: “Of course it is not in every case that costs will be awarded. It may well be exceptional to do so. But the practice is established.”

38. The court in Osman considered the legislative history and the meaning of section 51(2) of the 1981 Act (as it then was). Lloyd LJ said: “It may well be right that the purpose of section 51(2) of the Act is to cut down the jurisdiction conferred by section 51(1) . But if the practice of the Divisional Court is as I have found it to be, then section 51(2) does not have that effect on the facts of this case. It does not cut down or confine the jurisdiction prima facie conferred by section 51(1) . Mr Ross-Munroe argues that it “comes within” section 51(2) of the Act . So, in one sense it does. But it does not help him, if I am right that the practice of the Divisional Court in criminal habeas corpus is consistent with the power conferred by section 51(1) .”

39. The final submission made on behalf of Mr Osman is of relevance to this case. It was argued that the practice of ordering civil costs in criminal habeas corpus matters was inconsistent with the express statutory power conferred by the 1985 Act . Lloyd LJ rejected that, stating (at p317): “It is sufficient to say that I see no inconsistency. The powers supplement each other. They are not inconsistent.”

40. The court accordingly found that it had jurisdiction to award costs under section 51(1) and decided to exercise its discretion in favour of the unsuccessful applicant. The reasons for doing so were shortly stated: “The application for habeas corpus was made. It has failed. There is no suggestion that Osman is not in a position to pay the costs.” It is apparent therefore that, in suggesting that it may be exceptional to award costs in habeas corpus cases, Lloyd LJ had a very different type of exceptionality in mind to that which has developed through the Murphy line of cases.

41. Osman was not cited in Murphy nor in the cases which followed Murphy . Although directly concerned with habeas corpus proceedings, the discussion in Osman of the scope and effect of section 51(2) is of wider relevance.

42. The Claimant points to multiple cases decided both before and after Murphy in which the High Court has made an order for costs, apparently on the usual basis pursuant to its discretion under section 51(1) . These include: (a) R v Bow Street MSM & Another, ex parte South Coast Shipping Co. Ltd [1993] QB 645 (b) R v Tower Bridge MSM, ex parte Chaudhury [1994] QB 340 (c) R v DPP, ex parte Duckenfield [2000] 1 WLR 55 (d) R (Pelling) v Highbury Corner Magistrates’ Court [2002] EWHC 806 (Admin) (e) R (Kay & Another) v Leeds Magistrates’ Court [2018] EWHC 2842 (Admin)

43. In Quayum v DPP [2015] EWHC 1660 (Admin) , a Divisional Court (Sir Brian Leveson P and William Davis J) was invited to make an order that the unsuccessful appellant pay the respondent’s costs of an appeal by case stated from the Crown Court. The transcript shows Counsel for the respondent submitting that: “… there is a jurisdictional bar under section 18 of the 1985 Act . Section 18 deals with the issue of Magistrates' Courts' costs, with Crown Court costs and with Court of Appeal costs. Parliament has given no jurisdiction to this court in cases where an appeal has been dismissed.” Sir Brian Leveson observed in response: “ I do not think that is right. We make costs orders in case stated cases all the time. …” There was then the following exchange between Counsel and the Court: “Mr Khan: It is our submission that section 18 is the applicable provision. Sir Brian Leveson: This is an appeal by way of case stated from the Divisional Court. (pause) The appeal is governed by 52EPD of the Civil Procedure Rules. I see nothing that suggests the normal order in this court that costs follow the event should not apply. What do you say that the Criminal Procedure Rules require? Mr Khan: It is not the Criminal Procedure Rules, it is section 18 of the Prosecution of Offences Act. It deals with the Magistrates' Courts, the Crown Court and the Court of Appeal, but it does not deal with giving this court jurisdiction to award costs against an accused. William Davis J: It would not. These are civil proceedings for these purposes.” In the event, it was unnecessary for the point to be decided as the Court declined to make an order for costs even on the basis that they had discretion to do so.

44. In Hargreaves v Powys CC [2023] EWHC 13 (Admin) , a Divisional Court (Dame Victoria Sharp P and Hilliard J) allowed a public prosecutor’s application for the costs of an unsuccessful appeal by way of case stated concerning an order for committal to prison in default of payment of a confiscation order. Costs were awarded under section 28 A(3) of the 1981 Act . The court rejected an argument, based on the Murphy principle, that the “criminal costs regime” should apply. Darroch and Bahbahani were considered. The court noted that Murphy was concerned with the costs of a person who had been the defendant in the criminal proceedings and said [16]: “In such a case, there are indeed two different possible regimes for payment, with the scheme pursuant to section 28 A(3) of the 1981 Act being potentially much more generous than the scheme under the 1985 Act because it allows for the possibility that legal costs can be recovered. At para 14 of its judgment, the court in Murphy noted that neither party had been able to make any submissions as to the criteria to be applied for the purpose of deciding whether to apply the civil costs regime or the criminal costs regime. It was in those circumstances that the court concluded that, save in exceptional circumstances, prosecutions and appeals in criminal cases should be subject to the criminal costs regime.”

45. Having said that they were satisfied that the proceedings were properly described as criminal in nature, the court continued at [23]: “We are not concerned with an application for costs on behalf of a person who has been convicted in the magistrates’ court and in respect of whom there are two possible regimes for costs. We are not concerned with the Murphy test of exceptionality because there was only one scheme available here to the prosecutor and that is pursuant to section 28 A(3) of the 1981 Act . In our judgment that is the power which is available in this case to make an order for costs against the appellant. The fact that there is no power at all under the 1985 Act does not mean that the power under section 28 A(3) cannot be exercised if we think it appropriate to do so. It is the very absence of a power under the 1985 Act which brings section 28 A(3) into play where prosecution costs are concerned. The fact, too, that Parliament has legislated specifically to prevent the recovery of an accused’s legal costs by section 16 A of the 1985 Act cannot serve to limit the scope of section 28 A(3) as it applied to prosecution costs. There is nothing in the language of section 16 A to suggest that it was intended to affect prosecution costs in any way. ….It may well be that an order to pay prosecution costs in the Divisional Court would, in practice, be the exception rather than the rule because many defendants would not be in a position to pay them. However, this does not preclude the power to make such an order in an appropriate case.”

46. The Court went on to consider the appellant’s means, concluding that there was no satisfactory basis for an assertion that he had no means and assessed the costs payable by him at £25,000 inclusive of VAT.

47. It is apparent that the Court in Hargreaves was not purporting to doubt Murphy , rather it distinguished the position in Murphy which involved an application by the accused (who could apply for a defendant’s costs order under section 16 of the 1985 Act ) from an application by a public prosecutor (for whom there is no power to seek any payment out of central funds).

48. Mr Darbishire argued that in relation to an application for inter partes costs in respect of High Court proceedings, there is no principled distinction to be drawn between an application by a public prosecutor and one brought by the accused in the criminal proceedings. The only powers the High Court has to make inter partes costs orders are those which exist under the 1981 Act . He argues that the fact that the High Court (when sitting as a Divisional Court) has an additional (limited) power to order the payment of costs out of central funds under the 1985 Act cannot logically restrict the exercise of the power under section 51 to make orders for costs inter partes.

49. Mr Jarvis described Hargreaves as an ‘outlier’ but submitted that its effect was to confine the Murphy principle to cases where the successful party is either the defendant or a private prosecutor in the underlying criminal proceedings. The distinction relied upon by Mr Jarvis is the absence of any power to make any order for costs in a public prosecutor’s favour under the 1985 Act . This, Mr Jarvis argues, means “the criminal scheme cannot apply and the civil scheme must, with the result that the defendant may have to pay the prosecutor’s costs on an inter partes basis.”

50. If that argument was right, it would mean that public prosecutors enjoy a very significant advantage over both private prosecutors and defendants in relation to recovery of their own costs. It would also allow any prosecutor to maintain or defend High Court proceedings without any risk of being made the subject of an adverse costs order in favour of the defendant. While it might be argued that this reflects public policy where a public prosecutor is concerned, it is difficult to see how that argument could be advanced in relation to a private prosecutor. Unlike public prosecutors, private prosecutors are not subject to the Code for Crown Prosecutors which requires prosecutors to be satisfied both that there is sufficient evidence to provide a realistic prospect of conviction and that a prosecution is required in the public interest.

51. We note that Hargreaves was not cited in Morjaria , AB or IPE v Moran . It was considered by Eyre J in R (DPP) v Northampton Magistrates’ Court & others . The Director of Public Prosecutions sought an order for the costs of successful judicial review proceedings from the interested parties. Eyre J found that he had “no power” to award the costs sought. In doing so, he said [11]: “The authorities have adopted a consistent approach in judicial review cases in criminal causes or matters which is to say that there is a choice between two regimes and that the criminal regime is to apply unless either the circumstances or the case is exceptional.”

52. Eyre J rejected an argument that the reasoning in Hargreaves applied to an application under section 51 as it did to an application under section 28 A. Eyre J considered it well-established that in judicial review claims involving criminal causes or matters, there is a choice between the regime under the 1985 Act and that under the 1981 Act and that the 1985 Act was to be applied save in exceptional circumstances. He said [20]: “The fact that under one scheme costs are only payable to a prosecutor in particular circumstances and that those circumstances do not arise where there is a public prosecutor do not necessarily mean that the scheme is inapplicable. They simply mean that the scheme is one which does not make provision for costs in the circumstances that have arisen.”

53. With respect to Eyre J, it is difficult to see why this reasoning allows a distinction to be drawn between applications under section 28 A and those under section 51 . The earlier cases did not draw any such distinction. Murphy and Darroch both involved appeals by way of case stated, albeit in the latter case the proceedings were converted to judicial review proceedings. In Bahbahani the Divisional Court rejected the notion that there should be a distinction between appeals by way of case stated and claims for judicial review.

54. A further example of a Divisional Court approaching an application for costs in judicial review proceedings in a criminal matter in a conventional way is R (Chapter 4 Corp Dba Supreme) v the Crown Court at Southwark and the Lord Chancellor [2023] EWHC 1362; [2023] Costs LR 897 . A private prosecutor sought its costs of successful judicial review proceedings against the Lord Chancellor (acting through the Legal Aid Agency) as interested party in those proceedings. The Divisional Court (William Davis LJ and Jeremy Baker J) approached the application on the basis that the court had power to make such an order under section 51 but declined to do so in the exercise of its discretion. Although the judgment of the court referred to Darroch in relation to the costs below, it contained no suggestion that the Murphy principle applied to the High Court costs. That point does not appear to have been taken on behalf of the Lord Chancellor. Overview of the authorities

55. This review of the authorities demonstrates that courts have not always taken a consistent approach to applications for costs in High Court proceedings involving criminal causes or matters. It is apparent that cases have often been decided without full argument and without citation of all relevant authorities. Murphy has given rise to a line of authority which severely curtails the availability of inter partes costs in judicial review proceedings in which the underlying subject matter is criminal. However, the principle emerged without any real argument, without citation of any relevant authorities and without any detailed reasoning such as might be expected if a significant curtailment of the High Court’s general discretion to award costs was intended. Subsequent cases have further narrowed the scope of the residual discretion under section 51 where a judicial review claim relates to a criminal cause to a very narrow category of exceptional cases.

56. It is difficult to reconcile the Murphy line of cases with the reasoning in Osman and Hargreaves . There are other examples of cases in which costs orders have been made applying the conventional approach under section 51 . The observation of Sir Brian Leveson made in Quayum , at a time when he was President of the Queen’s Bench Division, that “We make costs orders in case stated cases all the time” carries some weight.

57. We agree with the submission made by Mr Darbishire that this case perhaps represents the first time that a Divisional Court has been invited to confront the apparent inconsistency between Osman and Murphy and to say that Murphy was decided per incuriam and is not to be followed. Having reviewed the authorities in detail, we agree with that submission. We consider that it is necessary to address the application for costs under section 51 on the basis of principle and not simply to follow the Murphy line of authority. The legislative history The civil costs regime

58. The High Court’s discretionary power to award costs, which is now contained in section 51 of the Senior Courts Act 1981 , may be traced back to the Supreme Court of Judicature Act 1875. The First Schedule to the 1875 Act introduced rules of court (which may be viewed as an early iteration of what are now the Civil Procedure Rules). Order LV dealt with costs and provided: “Subject to the provisions of the Act , the costs of and incident to all proceedings in the High Court shall be in the discretion of the Court; but nothing herein contained shall deprive a trustee, mortgagee, or other person of any right to costs out of a particular estate or fund to which he would be entitle according to the rules hitherto acted upon in Courts of Equity: Provided that where any action or issue is tried by a jury, the costs shall follow the event, unless upon application made at the trial for good cause shown the Judge before whom such action or issue is tried or the Court shall otherwise order.”

59. The Supreme Court of Judicature Act 1890 dealt with costs at section 5: “Subject to the Supreme Court of Judicature Acts and the rules of court made thereunder, and to the express provisions of any Statute, whether passed before or after the commencement of this Act , the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid.” Section 4 of the 1890 Act provided that: “Nothing in this Act shall alter the practice in any criminal cause or matter or in bankruptcy, or in proceedings on the Crown side of the Queen’s Bench Division.”

60. In Osman , Lloyd LJ described those provisions as the “lineal antecedent” of what by then had become section 51(1) and section 51(2) of the 1981 Act and are now section 51(1) , section 51(3) and section 51(5) .

61. Section 28 A was added to the 1981 Act by the Statute Law (Repeals) Act 1993 . The purpose of that Act may be described as statutory tidying-up. The schedules to the Act contained wide-ranging provisions repealing obsolete statute law and making necessary provisions as a consequence. Section 28 A covers the High Court’s powers on an appeal by case stated from a magistrates’ court or the Crown Court. In this context section 28 A(3) provides that the High Court “may make such other order in relation to the matter (including as to costs) as it thinks fit”. The criminal costs regime

62. The earliest statute dealing with criminal costs to which we were taken was the Costs in Criminal Cases Act 1908 . That Act gave the criminal courts power to direct payment to the prosecution or defence out of local funds (the funds of a county or county borough). It also gave the criminal courts power to order that prosecution costs be paid by the defendant or defence costs by the prosecutor. The 1908 Act did not include any provision for costs in the High Court.

63. The Costs in Criminal Cases Act 1952 extended the powers of assize courts to make inter partes costs orders between the prosecution and defence to the High Court, in respect of criminal trials in the Queen’s Bench Division.

64. The Crown Court was established by the Courts Act 1971 . Part VI of that Act dealt with costs and made provision for the new Crown Court to award costs out of central funds and to make inter partes orders. Section 49 gave a Divisional Court of the Queen’s Bench Division power to order the payment out of central funds of the costs of any party to proceedings before the Divisional Court in a criminal cause or matter. The Act said nothing about inter partes costs in High Court proceedings in a criminal cause or matter.

65. The Costs in Criminal Cases Act 1973 consolidated the law on criminal costs. Section 5 of the 1973 Act preserved the power for a Divisional Court to award payment out of central funds.

66. This remained the position until the implementation of the Prosecution of Offences Act 1985 . Part I of the 1985 Act provided for the establishment of the Crown Prosecution Service. In that context, Part II provided a regime for criminal costs. We have set out the relevant provisions above. Under the 1985 Act , a defendant to criminal proceedings could no longer claim inter partes costs but could still apply to recover his costs from central funds. A private prosecutor could also seek costs from central funds. The criminal courts (magistrates’ courts, the Crown Court and the Court of Appeal Criminal Division) could order that a defendant pay the prosecution’s costs. The 1985 Act preserved the power for a Divisional Court to order payment of costs out of central funds (in favour of the defendant or the prosecution). Otherwise, the 1985 Act contained no provisions in relation to costs incurred in the High Court.

67. It follows that, since at least 1908, broadly similar civil and criminal costs regimes to those which exist today have been in existence. The High Court has, since before then, had a general discretion as to the costs of all proceedings before that court with a proviso that the relevant statutory provisions are not intended to alter the practice in criminal matters. The criminal courts have had separate statutory powers to award costs out of central funds and, in some circumstances, costs inter partes. Since 1971, a Divisional Court of what is now the King’s Bench Division has also had the power to order costs out of central funds when dealing with a criminal matter.

68. Having set out how the current regimes for civil and criminal costs came into existence, we turn to our analysis of how they interact in this case. Does the 1985 Act oust the jurisdiction to award costs under section 51 of the 1981 Act ?

69. Section 51 commences with the words “Subject to the provisions of this or any other enactment and to rules of court …”. In Darroch CA , (at [33]) Burnett LJ described the power to award costs in judicial review proceedings under section 51 as “circumscribed by both subsection (1) (subject to other statutory provisions) and sub section (5 ) (not to alter any practice in any criminal cause)”. The court concluded that the statutory provisions contained in the 1985 Act governed the circumstances in which an award of costs could be made in criminal proceedings against a non-party (“a third party costs order”). Under section 19 B of the 1985 Act a court has power to make such an order only if satisfied that the third party has been guilty of “serious misconduct”. There was no suggestion of any serious misconduct in that case.

70. It is important to remember that the application which was considered in Darroch was an application for the third party to pay the defence costs incurred in the magistrates’ court. Seen in that context, it is plainly right that the High Court had no power to make an order under section 51 that could not have been made by the District Judge in the court below. The power to make orders for costs incurred in the criminal courts is governed by the 1985 Act and section 51 of the 1981 Act cannot be used to override that.

71. Darroch CA is not authority for the proposition that the provisions of the 1985 Act override the power to make an award of costs under section 51 in relation to judicial review proceedings in a criminal matter.

72. None of the other authorities (including Murphy ) suggest that the High Court’s jurisdiction to award costs under section 51 is ousted by the provisions of the criminal regime, as now contained in the 1985 Act . Indeed, the Murphy principle recognises that there is no ouster because it envisages a bridge from the criminal costs regime to the civil costs regime in exceptional circumstances.

73. In Osman , the Divisional Court expressly rejected the argument that the only jurisdiction to award costs in a criminal matter was that conferred by the 1985 Act . As Lloyd LJ said, the powers under the 1981 Act and the 1985 Act supplement each other.

74. The 1985 Act gives a Divisional Court of the King’s Bench Division power to make orders under sections 16 and 17 for the payment of costs out of central funds. That is a power that exists only under the criminal regime and which the High Court does not otherwise have.

75. Sections 18 and 19 of the 1985 Act do not apply to the High Court (whether sitting as a Divisional Court or a Single Judge). It is through these sections that the criminal courts are empowered to make inter partes costs orders. It would be strange if a Divisional Court was empowered to order the payment of a party’s costs out of central funds yet not permitted to make any order for inter partes costs in criminal matters. The answer lies in section 51 . There was no need to extend sections 18 and 19 to criminal matters determined by a Divisional Court because section 51 allows for inter partes costs orders to be made in all proceedings before the High Court. As the Practice Direction (Costs in Criminal Proceedings) 2015 says under Part 3: Awards of Costs against Defendants: “3.8 The High Court is not covered by section 18 of the Act but it has complete discretion over all costs between the parties in relation to proceedings before it.” While the Practice Direction contains no similar statement in relation to section 19 , the same rationale would apply.

76. We conclude that the High Court retains its power to make an order under section 51 of the 1981 Act in relation to judicial review proceedings concerning criminal matters. Does section 51(5) of the 1981 Act preclude awarding costs under the civil regime?

77. We must next consider the effect of the statement in sub section (5 ) that nothing in subsection (1) shall alter the practice in any criminal cause.

78. We have been shown no authority to demonstrate that, at the time the 1981 Act was implemented, there was an established practice in place whereby costs in High Court proceedings relating to a criminal cause fell to be considered only under the criminal regime. Osman supports the view that there was an established practice of awarding costs pursuant to the High Court’s general discretion in applications before a Divisional Court for habeas corpus in the context of extradition, which were recognised as criminal in nature.

79. There are other illustrations, both before and after Murphy , of the High Court exercising its discretion under section 51 to make inter partes costs orders in cases where the underlying subject-matter was criminal.

80. We conclude that there was no established practice at the time the 1981 Act was passed requiring that costs applications in criminal proceedings before the High Court should generally be considered only by reference to the criminal costs regime. In those circumstances, section 51(5) does not operate as a bar to the Court exercising its general discretion as to costs as set out in section 51(1) and (3).

81. The real question then is how the jurisdiction to award costs inter partes under section 51 should be exercised. Is there a requirement for exceptionality before making an order for inter partes costs pursuant to section 51 in a criminal cause or matter?

82. It might be said that the principle set out at paragraph 15 in Murphy that “save in exceptional cases, prosecutions and appeals in criminal cases should be and will be subject to the criminal costs regime” has been elevated by subsequent cases to a firm rule. Although Stanley Burnton LJ expressed the principle as being clear, his judgment contained no analysis or rationale for it. Paragraph 14 of the judgment demonstrates that it was not based on any authority nor had Counsel been able to assist with the criteria to apply in deciding whether costs fell to be considered under the civil regime or the criminal regime. In that case, the Divisional Court was satisfied that the case was sufficiently unusual that the civil regime contained in section 51 was engaged and an order was made on that basis. The point was therefore not determinative of the outcome in Murphy , which perhaps explains the limited reasoning to support the principle.

83. Cases involving the exercise of judicial discretion on costs are acutely fact sensitive and care must be taken not to view the way in which the discretion is exercised in one case as creating hard and fast rules for all cases. We do not think that the first sentence of paragraph 15 of Murphy is to be regarded as a rule of general application to all criminal matters coming before the High Court. Had Parliament intended to create a general rule that costs applications in criminal judicial review proceedings should be determined by reference to the criminal costs regime, that could easily have been included in the relevant legislation.

84. Proper analysis of the provisions of the 1981 Act and the 1985 Act (in the context of the legislative history) demonstrates that the High Court has retained its general power to make orders for costs as between the parties under section 51 in addition to being given limited additional powers under the 1985 Act to allow for payments out of central funds when the High Court is sitting as a Divisional Court.

85. There is certainly no proper basis for saying that the fact that sections 18 and 19 of the 1985 Act do not apply in the High Court means that the High Court cannot make an order that the defendant pays the prosecutor’s costs or that the prosecutor pays the defendant’s costs in appropriate circumstances. The power to do so comes from section 51 of the 1981 Act . There are numerous examples of the High Court making such orders in judicial review proceedings.

86. Had Osman been cited in other cases and had other courts been provided with the same opportunity we have had to analyse the legislative provisions and the full range of authorities, we do not think that the Murphy principle would have developed in the way that it did.

87. To the extent that Murphy and subsequent cases have been treated as establishing an exceptionality requirement for making orders under section 51 in criminal matters, we think this is wrong and not to be followed. The High Court’s power to make inter partes orders under section 51 is preserved. That is a discretionary power and the court will decide how the discretion should be exercised in the circumstances of any particular case. How should the discretion under section 51 be exercised in this case?

88. The way in which Murphy has been interpreted as creating a rule of general application demonstrates the risk that judicial observations about the exercise of discretion in a particular case will be taken as a statement of law of wider application.

89. Having decided that we have the power to make a costs order in the Claimant’s favour, our task is to consider whether we should do so in this case. We do not purport to lay down general guidance as to how the discretion should be exercised in criminal judicial review proceedings. We recognise that there may be established practices that must be taken into consideration pursuant to section 51(5) which may limit or affect the exercise of discretion in other cases. We also recognise the express reference to rules of court in the opening words of section 51(1) meaning that the approach is guided, in the usual way, by CPR Part 44.

90. The Defendant in this case was the magistrates’ court. Mr Westhead was joined to the proceedings as Interested Party. As is the usual practice in claims against a court or tribunal, the Defendant did not make any submissions on the claim. It assisted by providing the District Judge’s reasons for the challenged decision and confirmed that an attendance note filed in the claim was broadly accurate but played no active part in the proceedings.

91. As set out in the substantive judgment, Mr Westhead initially indicated an intention to contest the claim. He subsequently decided that he would not resist it but declined to sign the draft consent order prepared by the Claimant’s representatives. The reason that he would not do so is that he did not agree the basis on which the Claimant sought the quashing of the summons. He also did not consent to an order for costs.

92. Mr Westhead’s position was that, although he accepted the deficiency of his application for a summons, the prosecution was nonetheless a proper one. He made it clear that while he agreed to the summons being quashed, he did so on the basis that it was his intention to cure what he saw as purely procedural deficiencies and then to issue another application for a summons. It was in those circumstances that a full hearing was required. During that hearing, Mr Westhead sought to persuade the Court that Mr Bates was indeed guilty of the criminal allegations he had made.

93. The Court made very clear findings against Mr Westhead. The application for a summons was found to be vexatious and an abuse of the process of the court. Mr Westhead was found not to have complied with any of the duties of a prosecutor. He had initiated a private prosecution without any proper reflection of whether that was appropriate. He did not comply with the duty of candour. He had sought to bring a prosecution on the basis of unsubstantiated assertions.

94. It is a long-established practice that courts and tribunals will generally take a neutral stance in judicial review proceedings concerning their decisions and that the High Court will not order costs against inferior courts or tribunals merely because they have made a mistake of law, but only if they have acted improperly in a flagrant way (see R v Liverpool Justices, ex parte Roberts [1960] 1 WLR 585 and R (Davies (No 2)) v HM Deputy Coroner for Birmingham [2004] EWCA Civ 207 ). It is not suggested that any such circumstances apply here and no application is pursued against the Defendant. The question is whether we should make an order for costs in favour of the Claimant against the Interested Party.

95. Given the findings in the substantive judgment, we see no reason why we should not exercise our discretion to make an order that the Interested Party pays the Claimant’s costs of the judicial review proceedings.

96. Those proceedings were necessary because Mr Westhead made a vexatious application for a summons. He abused the process of the magistrates’ court in doing so. He compounded matters by failing to comply with the duty of candour as set out in paragraph 41 of the substantive judgment. He provided misleading information and did not reveal all that he should have done. Mr Westhead’s continued insistence on making unsubstantiated criminal allegations against Mr Bates was carried through into the judicial review proceedings.

97. In exercising our discretion under section 51 , we see no reason to depart from the general rule that the unsuccessful party (Mr Westhead) should pay the costs of the successful party (Mr Bates). We have considered whether anything in Mr Westhead’s representations, including his submission that he was let down by the magistrates’ court and by other organisations, should lead us to order that he should pay only a proportion of the costs of the judicial review proceedings. We do not think this is the case. The need for the judicial review proceedings and the way in which they were conducted arose overwhelmingly out of the conduct of Mr Westhead in seeking to maintain an unsubstantiated private prosecution.

98. We will therefore make an order that the Interested Party should pay the Claimant’s costs of the judicial review proceedings. Assessment of the costs payable in relation to the judicial review proceedings

99. As we have indicated, the Claimant did not serve a costs schedule pending determination of whether he was entitled in principle to recover his costs. Unless the parties are able to agree a sum in respect of the recoverable costs (which we would encourage them to seek to do) there will need to be a detailed assessment.

100. Notwithstanding the findings in the substantive judgment as to the Interested Party’s conduct in the criminal proceedings below, we think it appropriate to order that the costs of the judicial review proceedings should be assessed on the standard basis. In reaching that conclusion, we recognise that Mr Westhead did accept that the summons should be quashed and that his conduct before the High Court went no further than a dogged insistence on airing his belief that the Claimant was guilty of criminal wrongdoing. We do not think that his conduct in the High Court crossed the line into something out of the norm such as to justify ordering assessment on the indemnity basis.

101. We currently have no indication of the quantum of the judicial review costs. We do note though the amount of the costs sought in the criminal proceedings. We have some reservations about the scale of those costs. Given the amount of time and expense reflected in the claim for costs in the magistrates’ court proceedings, we would not expect very significant amounts of additional work to have been required before issuing the claim for judicial review. The Costs Judge will wish to bear those observations in mind when conducting the assessment.

102. The Claimant gave an undertaking not to seek the additional costs associated with pursuing the application for costs. That was an appropriate concession. The application has involved detailed legal consideration in which Mr Westhead has played a limited part. The Claimant was not in a position to make representations on costs at the time of the original hearing so that a separate hearing was required. The Claimant will remain bound by his undertaking to limit his costs in that way. The costs of the proceedings in the magistrates’ court

103. The way that Mr Westhead conducted himself in relation to the application for a summons has a bearing upon the application for the costs of the proceedings in the magistrates’ court. We consider that the way in which the application in the magistrates’ court was made amounts to “unnecessary or improper act or omission” within the meaning of section 19 of the 1985 Act .

104. In those circumstances, regulation 3(1) of the Costs in Criminal Cases (General) Regulations 1986 allows the magistrates’ court, after hearing the parties, to make an order that all or part of the costs so incurred by Mr Bates should be paid by Mr Westhead. Pursuant to regulation 3(3), any order made pursuant to regulation 3(1) shall specify the amount of costs to be paid.

105. Pursuant to section 66 of the Courts Act 2003 , a judge of the High Court has the powers of a District Judge (Magistrates’ Court) in relation to criminal causes or matters. Mr Darbishire invites us to exercise that power to make an order that Mr Westhead pay Mr Bates’ costs of the proceedings below.

106. We accept that it is within our power to make such an order. We consider that it is appropriate that such an order should be made given the findings set out in the substantive judgment. However, we did not hear full submissions on the application, in particular as to the amount of costs which it would be reasonable to order Mr Westhead to pay. We consider that determination of the amount of costs which Mr Westhead should be ordered to pay pursuant to the provisions of regulation 3 of the 1986 Regulations would be better dealt with in the magistrates’ court by a District Judge, experienced in dealing with applications for costs in proceedings in that court. To comply with regulation 3(3) that determination must be made before making any order under regulation 3(1). On that basis we remit the application for costs to the magistrates’ court. Conclusions and disposal

107. We have concluded that to the extent that Murphy has been treated as establishing a principle that the High Court may only award costs under section 51 in relation to criminal causes in exceptional cases, that is wrong and should not be followed.

108. We find that Mr Bates is entitled to an order that Mr Westhead pay his costs of the judicial review proceedings. Such costs are to be subject to a detailed assessment on the standard basis, if they cannot be agreed.

109. In principle, we consider that the provisions of section 19 of the 1985 Act are engaged, entitling Mr Bates to an order that Mr Westhead pay some or all of his costs of the criminal proceedings. We have noted the very large sum claimed. We have not heard full submissions on the amount of any costs order which should be made pursuant to the provisions of regulation 3 of the Costs in Criminal Cases (General) Regulations 1986. We accordingly remit the application to the magistrates’ court for that purpose.