R (Bates) v Highbury Corner MC v Westhead [2025] EWHC (Admin)
In the 2012 case of Murphy a Divisional Court observed (without authority in support or consideration for the implications) that “clearly, save in exceptional cases, prosecutions and appeals in criminal cases should be and will be subject to the criminal costs regime.” In other words, in almost every case a successful party in a criminal judicial review will only be able to recover costs under the Prosecution of Offences Act 1985 and will not be entitled to an order under the general power of the High Court to award costs. Given that the POA 1985 gives the High Court no power at all to order costs inter partes, at a stroke the successful party in criminal judicial review was deprived of any ability to recover costs from the other side, irrespective of the merits of the case or the conduct of the losing party. That was a state of affairs as unjust as it was unjustifiable.
As the Divisional Court in Bates observed today, the principle advanced in Murphy was “elevated by subsequent cases to a firm rule.” Some later constitutions of the High Court sought to explain or defend the logic of the approach; others shrugged and said, ‘if there’s a lacuna, that is for Parliament to amend not us’; and still others found more or less ingenious ways of getting round it, without expressly doubting the existence or correctness of the rule. None adverted to the fact that, for well over a hundred years before Murphy, the High Court had been happily making such inter partes costs orders without any Court suggesting that there was any reason not to do so. Parallel High Court and criminal costs regimes had co-existed since at least 1908 and no Court had ever considered that one displaced the other; they were regarded, as complementary and exercised accordingly. Yet, at a stroke in 2015, the invariable practice of the High Court to do justice in this way had been curtailed, the result of a throwaway observation entirely without analysis or authority. Ironically, the suggested principle did not even impact the case in which it first appeared: the Court in Murphy decided that the facts of that case were exceptional and so went on to make various orders under its civil powers. But the legacy of Murphy was wrongly to deprive subsequent litigants of the same benefit.
Despite some forensic chuntering in a number of the post-Murphy cases, until Bates no full-throated attack on Murphy had been made. One was long overdue. Bates was the first case in which the Divisional Court was invited to return to basic principles “and to say that Murphy was decided per incuriam and is not to be followed”.
Following a lengthy review of the authorities and the legal framework for costs in the High Court going back to the nineteenth century, the Court agreed with the Claimant’s submission: inter partes costs in criminal judicial review are to be approached on the basis of the general discretion provided by section 51. There is no exceptionality rule in criminal judicial review. Murphy, and the cases which followed it, are simply wrong. And, exercising that general discretion, the Court ordered that the Interested Party should pay Mr Bates’ costs of the judicial review.
Adrian Darbishire KC (instructed by Rob Hunt, Andrew Taggart and Jessica Chappatte of Herbert Smith Freehills Kramer, leading Stuart Biggs KC) acted for Mr Bates in both the underlying judicial review and the costs proceedings.
Adrian Darbishire KC