AC-2024-LON-003165 - [2025] EWHC 2532 (Admin)

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.

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 As the 1981 Act was originally enacted, section 51(2) provided: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.

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.”

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).”

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.”

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.

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.

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:

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.

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 28A(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 28A(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.”

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 28A(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 28A(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 28A(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 16A of the 1985 Act cannot serve to limit the scope of section 28A(3) as it applied to prosecution costs. There is nothing in the language of section 16A 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.”

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.

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).

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.

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.”

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.

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.”

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 28A. 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.”

With respect to Eyre J, it is difficult to see why this reasoning allows a distinction to be drawn between applications under section 28A 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.

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.