The Divisional Court’s decision in R (Bates) v Highbury Corner Magistrates’ Court [2025] EWHC 2532 (Admin) fundamentally changes how costs are approached in criminal judicial review proceedings by holding that the long-established Murphy principle was wrongly decided and should no longer be followed.
Background
The judicial review proceedings were brought by the Claimant, Mr Antony Bates, to challenge a summons issued against him in the Highbury Corner Magistrates’ Court and the decision to send him to the Crown Court for trial. The summons had been issued on the application of the Interested Party, Mr James Westhead, who was acting as a private prosecutor. In a judgment dated 31 January 2025 (R (Bates) v Highbury Corner Magistrates’ Court [2025] EWHC 184 (Admin)), the High Court quashed the summons and the committal decision, finding that the application for the summons was vexatious and an abuse of process [§1].
Following the substantive judgment, the Court convened as a Divisional Court (Lady Justice Whipple and Lady Justice Yip) to determine the Claimant’s applications for costs [§1]. The Claimant sought two distinct forms of costs relief: first, the costs incurred in bringing the judicial review proceedings pursuant to section 51(1) of the Senior Courts Act 1981; and second, the costs thrown away in the criminal proceedings in the magistrates’ court pursuant to section 19 of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 [§2]. The costs claimed for the criminal proceedings were quantified at £235,922.11 (including over 400 hours of solicitor time), while the costs for the judicial review proceedings had not been quantified pending the Court’s decision on the principle of recoverability [§4-5]. The Defendant, the magistrates’ court, did not participate in the costs hearing, and the Interested Party, Mr Westhead, attended in person [§8, 90]. The Attorney-General appointed Paul Jarvis KC as Advocate to the Court to assist on the legal issues arising from the Murphy principle [§10-11].
Costs Issues Before the Court
The Court was required to determine two primary costs issues [§12]. The first concerned the Claimant’s application for the costs of the judicial review proceedings under section 51(1) of the Senior Courts Act 1981. This raised a fundamental point of law as to whether the High Court’s general discretion to award costs in such proceedings was circumscribed by the principle established in Murphy v Media Protection Services [2012] EWHC 529, which held that costs in criminal causes or matters should only be awarded under the civil regime in exceptional circumstances [§24]. The Murphy principle had been followed in numerous subsequent cases, with the category of “exceptional circumstances” described as “very narrow indeed” [§34]. Importantly, in none of the cases since Murphy had a court found circumstances sufficiently exceptional to permit departure from the criminal costs regime [§34]. The Court had to decide whether the Murphy principle was correct or should be departed from, and if the discretion under section 51 was available, how it should be exercised in this case [§12].
The second issue related to the Claimant’s application for the costs of the criminal proceedings under section 19 of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 [§14]. This involved considering whether the Court should exercise the power of a District Judge (Magistrates’ Courts) under section 66 of the Courts Act 2003 to make an order for costs inter partes, and if so, whether such an order was appropriate on the facts and how the amount should be determined [§14].
The Parties’ Positions
The Claimant, represented by Adrian Darbishire KC and Stuart Biggs KC, contended that the Murphy principle was wrongly decided per incuriam and should not be followed [§6, 57]. It was submitted that the High Court retained its general discretion under section 51(1) of the Senior Courts Act 1981 to award costs in judicial review proceedings concerning criminal matters, without any requirement for exceptional circumstances [§6]. The Claimant argued that the Court should apply the usual principles under CPR Part 44, with the starting point that the successful party should recover costs from the unsuccessful party [§6-7]. In support, the Claimant relied on authorities such as R v Chief Magistrates, ex parte Osman (1990) Cr App R 313 [§35-41] and R (Chapter 4 Corp Dba Supreme) v the Crown Court at Southwark [2023] EWHC 1362 [§54], which demonstrated a practice of awarding costs under section 51 in criminal matters without reference to the Murphy principle. The Claimant also pointed to numerous other cases, both before and after Murphy, where the High Court had made costs orders in criminal matters applying the conventional approach under section 51 [§42]. For the criminal proceedings costs, the Claimant submitted that the findings in the substantive judgment established that Mr Westhead had engaged in unnecessary or improper acts, warranting an order under section 19 of the 1985 Act, and that the Court should exercise its powers under section 66 of the Courts Act 2003 to make that order rather than remitting it to the magistrates’ court [§7, 105].
The Interested Party, Mr Westhead, resisted both applications [§8]. He did not address the legal principles underpinning the Murphy principle but argued that the costs sought were excessive, highlighting the involvement of two King’s Counsel and multiple solicitors as disproportionate [§8]. He maintained that the private prosecution was in the public interest and that he had been let down by the magistrates’ court and other organisations [§8]. Mr Westhead also stated that he had agreed to the quashing of the summons but not to the reasons or a costs order, and contended he should not be penalised for an error by the District Judge [§8]. He concluded by stating that an adverse costs order would “break [his] spirit to carry on the fight for justice” [§9].
The Advocate to the Court, Mr Paul Jarvis KC, submitted that the Murphy principle was not wrong and should be followed [§11]. He argued that Parliament had enacted separate regimes for civil and criminal costs, and the High Court should only depart from the criminal costs regime in exceptional circumstances [§33]. He relied on subsequent authorities such as R (AB) v Uxbridge Youth Court [2023] EWHC 2951 (Admin) and Morjaria v Westminster Magistrates’ Court [2024] EWHC 178 (Admin), which had affirmed the Murphy principle and emphasised the narrowness of the exception [§29, 33-34]. Mr Jarvis described the rationale as ensuring that “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” [§33].
The Court’s Decision
The Court held that the Murphy principle, as developed in subsequent cases requiring exceptional circumstances before civil costs could be awarded in criminal judicial review proceedings, was wrong and should not be followed [§82, 86-87, 107]. After conducting a detailed analysis of the legislative history and authorities, the Court concluded that the High Court’s power to award costs under section 51(1) of the Senior Courts Act 1981 was not ousted by the criminal costs regime in the Prosecution of Offences Act 1985 [§69-76]. The Court found that sections 18 and 19 of the 1985 Act, which govern inter partes costs orders in the criminal courts, do not apply to the High Court [§75]. There was no need to extend these provisions to the High Court because section 51 already allows for inter partes costs orders to be made in all proceedings before the High Court [§75]. As the Practice Direction (Costs in Criminal Proceedings) 2015 states: “The High Court is not covered by section 18 of the Act but it has complete discretion over all costs between the parties in relation to proceedings before it” [§75].
The Court further held that section 51(5) of the 1981 Act, which provides that nothing in subsection (1) shall alter the practice in any criminal cause, did not preclude the award of costs under the civil regime [§77-81]. The Court found there was no established practice at the time the 1981 Act was passed requiring costs in criminal matters before the High Court to be determined solely under the criminal regime [§78-80]. The decision in Osman demonstrated an established practice of awarding costs pursuant to the High Court’s general discretion in criminal matters [§78]. The Court concluded that the powers under the 1981 Act and the 1985 Act supplemented each other, as stated in Osman [§39, 73].
The Court was critical of how Murphy had developed, noting that the principle “emerged without any real argument, without citation of any relevant authorities and without any detailed reasoning” [§55-56, 82]. Stanley Burnton LJ’s judgment in Murphy stated the principle at paragraph 15 without providing any rationale for it, and paragraph 14 demonstrated it was not based on any authority nor had counsel been able to assist with the criteria to apply [§82]. The Court observed that had Osman been cited in Murphy and subsequent cases, and had courts been provided with the same opportunity to analyse the legislative provisions and full range of authorities, “we do not think that the Murphy principle would have developed in the way that it did” [§86].
The Court concluded: “To the extent that Murphy and subsequent cases have been treated as establishing an exceptionality requirement for making orders under section 51 in criminal matters, we think this is wrong and not to be followed. The High Court’s power to make inter partes orders under section 51 is preserved. That is a discretionary power and the court will decide how the discretion should be exercised in the circumstances of any particular case“ [§87].
Having decided that it had the power to make a costs order, the Court exercised its discretion under section 51 to order that the Interested Party pay the Claimant’s costs of the judicial review proceedings [§95, 98]. The Court applied the general rule under CPR 44.2 that the unsuccessful party should pay the costs of the successful party, noting that Mr Westhead’s conduct—including making a vexatious application, abusing the process of the magistrates’ court, and failing to comply with the duty of candour—justified the order [§93, 95-97]. The Court stated: “Given the findings in the substantive judgment, we see no reason why we should not exercise our discretion to make an order that the Interested Party pays the Claimant’s costs of the judicial review proceedings” [§95]. The Court emphasised: “The need for the judicial review proceedings and the way in which they were conducted arose overwhelmingly out of the conduct of Mr Westhead in seeking to maintain an unsubstantiated private prosecution” [§97].
The costs were to be assessed on the standard basis if not agreed [§99-100]. While recognising Mr Westhead’s misconduct in the criminal proceedings below, the Court considered that his conduct in the High Court—while involving “a dogged insistence on airing his belief that the Claimant was guilty of criminal wrongdoing“—did not cross the line into conduct sufficiently out of the norm to justify assessment on the indemnity basis [§100]. The Court noted its reservations about the scale of the costs claimed for the magistrates’ court proceedings (£235,922.11 including over 400 hours of solicitor time) and observed that the Costs Judge should bear these observations in mind when conducting the assessment of the judicial review costs, as significant additional work before issuing the judicial review claim would not be expected [§101].
For the costs of the criminal proceedings, the Court found that section 19 of the Prosecution of Offences Act 1985 was engaged, as Mr Westhead’s actions constituted an “unnecessary or improper act or omission” within the meaning of the section [§103]. The Court stated: “We consider that the way in which the application in the magistrates’ court was made amounts to ‘unnecessary or improper act or omission’ within the meaning of section 19 of the 1985 Act” [§103]. However, the Court declined to determine the amount of costs under regulation 3 of the 1986 Regulations, instead remitting the application to the magistrates’ court for that purpose [§106]. The Court reasoned: “We consider that determination of the amount of costs which Mr Westhead should be ordered to pay pursuant to the provisions of regulation 3 of the 1986 Regulations would be better dealt with in the magistrates’ court by a District Judge, experienced in dealing with applications for costs in proceedings in that court” [§106]. This approach was taken partly because the Court had not heard full submissions on the quantum, and partly because a District Judge would be better placed to assess the reasonableness of costs claimed for magistrates’ court proceedings [§106].
The Claimant’s undertaking not to seek the additional costs of pursuing the costs arguments was upheld, meaning that the costs of the costs hearing itself would not be recoverable from Mr Westhead [§102]. The Court considered this “an appropriate concession” given that the application involved detailed legal consideration in which Mr Westhead played a limited part, and a separate hearing was required because the Claimant was not in a position to make representations on costs at the original hearing [§102].
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