In the recent case of The King (on the application of Anthony Bates) and Highbury Corner Magistrates’ Court and James Westhead [2025] EWHC 2532 (Admin) the High Court determined that its powers to award costs that arise out of a criminal matter are not restricted by the exceptionality test as first established in Murphy v Media Protection Services [2012] EWHC 529; [2013] 1 Costs LR 16.
The Court took the opportunity presented to fully review the interplay between the criminal costs regime and the High Court’s ability to order costs and determined that the principle set by Murphy had subsequently been followed without any proper assessment of the law.
Background – Bates v Highbury Corner Magistrates’ Court
The case concerned the judicial review of a decision by Highbury Corner Magistrates’ Court to issue a summons against the Claimant, Mr Anthony Bates, and to send him to the Crown Court for trial.[1] Mr. Bates was successful in having the summons against him quashed and made the following two applications for costs:
- An application for the costs incurred in bringing the judicial review proceedings pursuant to the High Court’s general discretion to award costs under section 51(1) of the Senior Courts Act 1981 (“the 1981 Act”).
- An application for ‘costs thrown away’ in the criminal proceedings in the Magistrates’ Court pursuant to section 19 of the Prosecution of Offences Act 1985 (“the 1985 Act”) and regulation 3 of the Costs in Criminal Cases General Regulations 1986.
The Claimant sought all of his costs from the Interested Party, Mr James Westhead, the private prosecutor who was found to have improperly applied for the summons against the Claimant. Mr Westhead was not legally represented in the proceedings. Therefore, given the legal issues that were likely to arise, the High Court invited the Attorney-General to appoint an advocate to provide submissions on the Murphy principle. The Attorney-General accepted the invitation to be heard, taking the position that the Murphy principle was not wrong in law and that the High Court should not depart from it.
Legal framework and issues
The High Court set out three questions that it needed to consider:
- Should the Murphy principle be followed?
- In judicial review proceedings concerning a criminal cause or matter, is the High Court able to make an award of costs in exercise of its discretion under section 51(1) only in exceptional circumstances?
- If the Court is entitled to exercise its discretion under section 51 to make an inter partes costs order, should it exercise that discretion so as to order that the Interested Party pay all or some portion of the Claimant’s costs?
The relevant statutory provision was section 19 of the 1985 Act which allows for inter partes orders in relation to costs incurred as a result of an unnecessary or improper act or omission. This provision does not apply to the High Court.[2]
Murphy Principle
In the case of Murphy, Mrs Murphy was prosecuted and convicted for offences under the Copyright, Designs and Patents Act 1988 relating to the illegal streaming of Premier League matches it the public house that she managed. Mrs Murphy’s convictions were eventually quashed by the Divisional Court which then considered the respective costs application. In doing so, Stanley Burton LJ stated:
“Clearly, save in exceptional cases, prosecutions and appeals in criminal cases should be and will be subject to the criminal costs regime. However, the present case is unusual…”
Stanley Burton LJ then went on to detail the unusual features of the case which justified the application of the civil costs regime. Namely, that the proceedings were part of a broader claim to protect a private interest and the prosecution had been run as a test case requiring substantial legal resources.
Post-Murphy case law
The High Court considered the subsequent case law following Murphy and found that the principle had been followed without proper consideration. It stated:
“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.”
Counsel for the Claimant submitted that cases decided before and after Murphy have shown that the High Court has routinely made orders for costs in judicial review proceedings under the civil regime, even where the underlying subject is criminal, and brought some of these authorities to the High Court’s attention. Noting that the courts have not always taken a consistent approach to costs applications in High Court proceedings regarding criminal matters, the High Court concluded:
“Murphy has given rise to the 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 .”
High Court analysis – Why the Murphy principle is wrong in law – the High Court’s reasoning
The High Court went on to consider the legislative history that underpins the civil costs regime and criminal costs regime. It found that, since at least 1908, broadly similar civil and criminal costs regimes to those which are applicable today have been in existence. This reinforced the position that the High Court has always had a general discretion as to the costs of all proceedings before it with the general proviso that the relevant statutory provisions are not intended to alter the practise in criminal matters.
Additionally, the High Court determined that the drafting of the 1985 Act itself reinforces the position that the Divisional Court must retain its discretion to allow costs. It noted that it would be strange if the Divisional Court was empowered to order the payment of a party’s costs out of central funds (as sections 18 and 19 of the Act allow) yet not permitted to make any order for inter partes costs in criminal matters.
It said that “the answer lies in section 51”. The High Court further noted that, if Parliament had intended to create a general rule that costs applications in criminal judicial review proceedings should be determined only by reference to the criminal costs regime, this could easily have been included in the relevant legislation.
As a result, the High Court used its discretion under section 51 of the 1981 Act and ordered that the interested party, Mr Westhead, pay the Claimant’s costs in relation to the judicial review proceedings. The Court then remitted the Claimant’s application for costs in relation to the substantive proceedings back to the Magistrates Court having determined that the interested party’s conduct amounted to an “unnecessary or improper act or omission” which invoked section 19 of the 1985 Act.
Conclusion
Having had the opportunity to thoroughly review the authorities and legislative history, the High Court concluded that the Murphy principle is wrong in law and should not be followed. This case is important as it shows that the criminal costs regime and civil costs regime are not mutually exclusive, but rather they supplement each other. Consequently, any public or private prosecutor or defendant will be exposed to a risk of significant costs being awarded against them should the High Court quash the determination of the court below. However, despite this increased exposure to costs, the clarification of the costs law, in regard to judicial review proceedings relating to criminal matters, is a welcome development as it provides assurance that the successful party, in what are usually expensive proceedings, will be able to claw back their costs.
[1] (R (Bates) v Highbury Corner Magistrates’ Court & Westhead [2025] EWHC 184 (Admin)
[2] The only provisions as to criminal costs in Part II of the 1985 Act that do apply to the High Court are section 16 (award of defence costs payable from central funds) and section 17 (award of private prosecutor’s costs payable from central funds).
