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

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

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.

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.

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).

The real question then is how the jurisdiction to award costs inter partes under section 51 should be exercised.