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Lady Justice Whipple and Lady Justice Yip
Lady Justice Whipple and Lady Justice Yip :
Introduction
In a judgment dated 31 January 2025 (R (Bates) v Highbury Corner Magistrates’ Court & Westhead [2025] EWHC 184 (Admin): “the substantive judgment”), Yip J determined judicial review proceedings in favour of the Claimant, Mr Antony Bates, resulting in the quashing of a summons which had been issued against him in the Highbury Corner Magistrates’ Court and of the decision to send him to the Crown Court for trial. The summons had been issued on the application of the Interested Party, Mr James Westhead, acting as a private prosecutor. The Court assembled as a Divisional Court (Whipple LJ and Yip J) to determine whether and to what extent the Claimant is entitled to recover his costs from the Interested Party.
The Claimant makes two applications:
An application for the costs incurred in bringing the judicial review proceedings pursuant to the High Court’s general discretion to award costs under section 51(1) of the Senior Courts Act 1981 (“the 1981 Act”).
An application for ‘costs thrown away’ in the criminal proceedings in the magistrates’ court pursuant to section 19 of the Prosecution of Offences Act 1985 (“the 1985 Act”) and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 (“the 1986 Regulations”).
The application for costs in the judicial review proceedings raises a point of law concerning the High Court’s power to award costs in criminal matters, which was the primary focus of the hearing before us.
The costs sought in respect of the criminal proceedings have been quantified in the total sum of £235,922.11 (£199,601.76 plus VAT). Although the final total includes some substantial write-downs, we note that the schedule of costs includes over 400 hours of solicitor fee-earners’ time in addition to substantial fees for leading and junior counsel.
The Claimant has not yet served a schedule quantifying the costs of the judicial review proceedings, pending the Court’s determination as to whether, in principle, it will make a costs order under section 51 of the 1981 Act.
- Heading
- Lady Justice Whipple and Lady Justice Yip
- The Claimant’s position
- The Interested Party’s response to the applications
- The Advocate to the Court’s stance on the Murphy principle
- The issues arising
- The costs of the judicial review proceedings
- The Civil Procedure Rules
- Section 28 A of the Senior Courts Act 1981
- The criminal costs regime and its application in the High Court
- The Murphy principle
- The development of the law since Murphy
- Cases which do not support the Murphy principle
- Overview of the authorities
- The legislative history
- The criminal costs regime
- Does the 1985 Act oust the jurisdiction to award costs under section 51 of the 1981 Act ?
- Does section 51(5) of the 1981 Act preclude awarding costs under the civil regime?
- Is there a requirement for exceptionality before making an order for inter partes costs pursuant to section 51 in a criminal cause or matter?
- How should the discretion under section 51 be exercised in this case?
- Assessment of the costs payable in relation to the judicial review proceedings
- The costs of the proceedings in the magistrates’ court
- Conclusions