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

The decision in Murphy was followed by a Divisional Court (Foskett J and Carr J) in Hull and Holderness Magistrates’ Court v Darroch [2014] EWHC 4184 (Admin). The court accepted, albeit with some reservation, that the High Court had power to make a third-party costs order under the civil regime in relation to the costs arising from a criminal prosecution in the magistrates’ court. However, it found that the test of exceptionality identified in Murphy was not met and the case should remain subject to the criminal costs regime in the usual way. Although the third party (the Football Association Premier League) stood to gain financially from a successful prosecution, the only costs for consideration were those incurred below and the proceedings in the magistrates’ court were not so unusual as to be exceptional.

The Divisional Court’s decision was appealed to the Court of Appeal, see Darroch & Darroch v Football Association Premier League Limited [2016] EWCA Civ 1220 (“Darroch CA”). The court concluded that it did not have jurisdiction to hear the appeal since it was an appeal against a judgment in a criminal cause or matter. However, having heard argument and on the basis that the subject of the appeal was of practical importance, the Court considered the merits, acknowledging that what was said was necessarily obiter. Burnett LJ (with whom Hallett LJ and Sir Brian Leveson P agreed) concluded, contrary to the approach taken in Murphy, that there was no power under section 51 of the 1981 Act (whether on an appeal by way of case stated or a claim for judicial review) to make a civil costs order in respect of costs incurred in the underlying proceedings in the Crown Court or magistrates’ court. Given the limits of the application in that case, Darroch CA did not specifically address the Murphy test of exceptionality as it applied to the costs of proceedings before the High Court.

Further caselaw since Darroch has supported the Murphy principle, suggesting that civil costs will only be awarded in respect of criminal proceedings in the High Court in exceptional cases. Exceptionality has been tightly controlled. Examples include:

In most of those cases, the court has not been invited to go back to first principles or to say that Murphy was wrongly decided. This area of law is characterised by cases which have been decided without full argument, often without the citation of all relevant authorities and frequently on the basis of concessions.

In Bahbahani, it was argued that Murphy should not be followed for three reasons: (i) the application in Murphy extended to the costs in the courts below whereas the application in that case was limited to only the High Court costs; (ii) the relevant passage in Murphy referred to “prosecutions and appeals in criminal cases” whereas claims for judicial review proceedings were civil proceedings; and (iii) the decision in Darroch CA found “the whole basis of Murphy was wrongly decided” and did not endorse any test of exceptionality.

The Divisional Court (Holroyde LJ and Dove J) rejected those arguments. The court said that the judgments in Darroch CA did not include any explicit or implied disapproval of the principle that the criminal costs regime should be applied (within its proper limits) unless there are exceptional circumstances making it appropriate for the High Court to make an award under the civil costs scheme. There was no relevant distinction between an appeal by way of case stated and a claim for judicial review in a criminal cause or matter. The court was not persuaded that the principle in Murphy was wrong or that it should not be followed. There were no exceptional reasons for applying the civil costs regime.

In submitting that this Court should not depart from the Murphy principle, Mr Jarvis acknowledged that the judgment of Stanley Burnton LJ which is the foundation stone of that principle was extremely brief. Paragraph 15 of the judgment merely states the principle without providing the rationale for it. However, Mr Jarvis said that Stanley Burton LJ appeared to have regarded the principle as clear and suggested that the rationale emerges from the cases which followed. He submitted that the best example of that was R (AB) v Uxbridge Youth Court, in which Linden J described the Murphy principle as well-established before saying [34]:

“… in my view the Court in Murphy was saying no more than this: Parliament has enacted a framework for the determination of costs in civil cases and it has enacted a framework for the determination of costs in criminal cases. Each identifies the orders which may be made and the statutory conditions which require to be satisfied if they are to be made. Parliament intended that costs would only be awarded in a criminal cause or matter where such an award is in accordance with the statutory provisions applicable to such causes or matters. The proceedings do not lose their criminal character when they are subject of an appeal or a claim for judicial review in the High Court, and nor do they for the purposes of the determination of costs of such proceedings. So it would only be in exceptional circumstances that a court would use its powers under section 51(1) of the Senior Courts Act to make an award of costs in a criminal case which would not be available under the provisions applicable to criminal cases.”

Linden J also observed that, as Darroch illustrates, the category of case in which there may be a departure from the criminal costs regime in a criminal cause or matter applying the Murphy exception is very narrow indeed. That description of the exception as being “very narrow indeed” was adopted by a Divisional Court (William Davis LJ and Stacey J) in Morjaria. The court noted that in none of the cases since Murphy has a court found the circumstances to be exceptional so as to permit the civil costs regime to apply.