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

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 subsection (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 19B 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.

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.

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.

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.

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.

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.

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.

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.