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

This review of the authorities demonstrates that courts have not always taken a consistent approach to applications for costs in High Court proceedings involving criminal causes or matters. It is apparent that cases have often been decided without full argument and without citation of all relevant authorities. Murphy has given rise to a line of authority which severely curtails the availability of inter partes costs in judicial review proceedings in which the underlying subject matter is criminal. However, the principle emerged without any real argument, without citation of any relevant authorities and without any detailed reasoning such as might be expected if a significant curtailment of the High Court’s general discretion to award costs was intended. Subsequent cases have further narrowed the scope of the residual discretion under section 51 where a judicial review claim relates to a criminal cause to a very narrow category of exceptional cases.

It is difficult to reconcile the Murphy line of cases with the reasoning in Osman and Hargreaves. There are other examples of cases in which costs orders have been made applying the conventional approach under section 51. The observation of Sir Brian Leveson made in Quayum, at a time when he was President of the Queen’s Bench Division, that “We make costs orders in case stated cases all the time” carries some weight.

We agree with the submission made by Mr Darbishire that this case perhaps represents the first time that a Divisional Court has been invited to confront the apparent inconsistency between Osman and Murphy and to say that Murphy was decided per incuriam and is not to be followed. Having reviewed the authorities in detail, we agree with that submission. We consider that it is necessary to address the application for costs under section 51 on the basis of principle and not simply to follow the Murphy line of authority.