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

The Claimant, represented by Mr Adrian Darbishire KC and Mr Stuart Biggs KC, contends that the law took a wrong turn in Murphy v Media Protection Services [2012] EWHC 529; [2013] 1 Costs LR 16 and subsequent cases following Murphy. The principle emerging from that line of cases (“the Murphy principle”) is that the High Court will only exercise its general discretion under section 51 of the 1981 Act to make an order for inter partes costs in a criminal cause in exceptional cases. Exceptionality has been narrowly defined for these purposes. The Claimant contends that Murphy was decided per incuriam and should no longer be followed. Rather, the Claimant submits that in relation to the judicial review proceedings, the court should exercise its discretion under section 51 in the usual way, guided by CPR Part 44, the starting point being that the successful party (Mr Bates) should receive his costs from the unsuccessful party (Mr Westhead).

In relation to the costs of the criminal proceedings below, the Claimant invites this court to exercise the power vested in the magistrates’ court pursuant to section 19 of the 1985 Act and regulation 3 of the 1986 Regulations. That power allows the magistrates’ court to make an order for costs inter partes if satisfied that one party has incurred costs as a result of an unnecessary or improper act by another party to the proceedings. The Claimant contends that the findings in the substantive judgment can lead only to the conclusion that Mr Westhead (the prosecutor) should be ordered to pay the costs Mr Bates (the defendant) incurred in the criminal proceedings. In those circumstances, we are invited to make such an order, exercising the powers of a District Judge (Magistrates’ Courts) pursuant to section 66 of the Courts Act 2003, rather than remitting the application to the magistrates’ court.