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

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.

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.

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.

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.

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.

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.