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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

We will therefore make an order that the Interested Party should pay the Claimant’s costs of the judicial review proceedings.