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

The High Court’s discretionary power to award costs, which is now contained in section 51 of the Senior Courts Act 1981, may be traced back to the Supreme Court of Judicature Act 1875. The First Schedule to the 1875 Act introduced rules of court (which may be viewed as an early iteration of what are now the Civil Procedure Rules). Order LV dealt with costs and provided:

“Subject to the provisions of the Act, the costs of and incident to all proceedings in the High Court shall be in the discretion of the Court; but nothing herein contained shall deprive a trustee, mortgagee, or other person of any right to costs out of a particular estate or fund to which he would be entitle according to the rules hitherto acted upon in Courts of Equity: Provided that where any action or issue is tried by a jury, the costs shall follow the event, unless upon application made at the trial for good cause shown the Judge before whom such action or issue is tried or the Court shall otherwise order.”

The Supreme Court of Judicature Act 1890 dealt with costs at section 5:

“Subject to the Supreme Court of Judicature Acts and the rules of court made thereunder, and to the express provisions of any Statute, whether passed before or after the commencement of this Act, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid.”

Section 4 of the 1890 Act provided that:

“Nothing in this Act shall alter the practice in any criminal cause or matter or in bankruptcy, or in proceedings on the Crown side of the Queen’s Bench Division.”

In Osman, Lloyd LJ described those provisions as the “lineal antecedent” of what by then had become section 51(1) and section 51(2) of the 1981 Act and are now section 51(1), section 51(3) and section 51(5).

Section 28A was added to the 1981 Act by the Statute Law (Repeals) Act 1993. The purpose of that Act may be described as statutory tidying-up. The schedules to the Act contained wide-ranging provisions repealing obsolete statute law and making necessary provisions as a consequence. Section 28A covers the High Court’s powers on an appeal by case stated from a magistrates’ court or the Crown Court. In this context section 28A(3) provides that the High Court “may make such other order in relation to the matter (including as to costs) as it thinks fit”.