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

The earliest statute dealing with criminal costs to which we were taken was the Costs in Criminal Cases Act 1908. That Act gave the criminal courts power to direct payment to the prosecution or defence out of local funds (the funds of a county or county borough). It also gave the criminal courts power to order that prosecution costs be paid by the defendant or defence costs by the prosecutor. The 1908 Act did not include any provision for costs in the High Court.

The Costs in Criminal Cases Act 1952 extended the powers of assize courts to make inter partes costs orders between the prosecution and defence to the High Court, in respect of criminal trials in the Queen’s Bench Division.

The Crown Court was established by the Courts Act 1971. Part VI of that Act dealt with costs and made provision for the new Crown Court to award costs out of central funds and to make inter partes orders. Section 49 gave a Divisional Court of the Queen’s Bench Division power to order the payment out of central funds of the costs of any party to proceedings before the Divisional Court in a criminal cause or matter. The Act said nothing about inter partes costs in High Court proceedings in a criminal cause or matter.

The Costs in Criminal Cases Act 1973 consolidated the law on criminal costs. Section 5 of the 1973 Act preserved the power for a Divisional Court to award payment out of central funds.

This remained the position until the implementation of the Prosecution of Offences Act 1985. Part I of the 1985 Act provided for the establishment of the Crown Prosecution Service. In that context, Part II provided a regime for criminal costs. We have set out the relevant provisions above. Under the 1985 Act, a defendant to criminal proceedings could no longer claim inter partes costs but could still apply to recover his costs from central funds. A private prosecutor could also seek costs from central funds. The criminal courts (magistrates’ courts, the Crown Court and the Court of Appeal Criminal Division) could order that a defendant pay the prosecution’s costs. The 1985 Act preserved the power for a Divisional Court to order payment of costs out of central funds (in favour of the defendant or the prosecution). Otherwise, the 1985 Act contained no provisions in relation to costs incurred in the High Court.

It follows that, since at least 1908, broadly similar civil and criminal costs regimes to those which exist today have been in existence. The High Court has, since before then, had a general discretion as to the costs of all proceedings before that court with a proviso that the relevant statutory provisions are not intended to alter the practice in criminal matters. The criminal courts have had separate statutory powers to award costs out of central funds and, in some circumstances, costs inter partes. Since 1971, a Divisional Court of what is now the King’s Bench Division has also had the power to order costs out of central funds when dealing with a criminal matter.

Having set out how the current regimes for civil and criminal costs came into existence, we turn to our analysis of how they interact in this case.