Mehmet, R (on the application of) v Clerk To the Justice of Miskin

For the purpose of determining jurisdiction, a judicial-review challenge is characterised by the underlying order sought to be reviewed, rather than by the order made in the judicial-review proceedings. An assessment of costs under a defendant’s costs order made after criminal proceedings is part of a criminal cause or matter. This remains so where the original order was made by magistrates and is challenged through judicial review. The statutory bar on appeals to the Court of Appeal therefore applies. A different result may follow where Parliament has created a special civil-enforcement procedure permitting unrestricted appeals, but no comparable procedure applied here.

The claimant had been acquitted by the Aberdare Justices and obtained a defendant’s costs order. The respondent assessed his recoverable costs at £251.90, although he claimed £11,754.30. The Divisional Court refused permission to seek judicial review, holding that the application was out of time and lacked merit. The claimant sought permission to appeal. The Court of Appeal first had to decide whether, under the Supreme Court Act 1981, it had jurisdiction to entertain an appeal concerning the assessment of costs arising from criminal proceedings.

The Court of Appeal dismissed the proposed appeal because it had no jurisdiction to hear it.

1. Section 18(1)(a) of the Supreme Court Act 1981 prevents an appeal to the Court of Appeal from a High Court judgment in a criminal cause or matter. The character of proceedings for this purpose depends on the order sought to be reviewed, not on the order made or refused in the judicial-review proceedings.
2. Applying Carr v Atkins [1987] 1 QB 963, the order sought to be reviewed was the assessment of costs payable under a defendant’s costs order made at the conclusion of criminal proceedings. It therefore concerned a criminal cause or matter. R v Steel (1876-7) 2 QBD 37 supported the conclusion that taxation or assessment of costs following criminal proceedings forms part of the criminal procedure. It made no difference that the original costs order had been made by magistrates and reached the High Court through judicial review.
3. Gooch v Evans [1985] 3 All ER 654 was distinguishable. That case concerned a special statutory civil-enforcement procedure under section 87 of the Magistrates’ Courts Act 1980, which Parliament had intended to operate without restrictions on appeals. The present case contained no comparable enforcement procedure.
4. The words “in any criminal cause or matter” have a wide meaning, as illustrated by ex p Woodhall (1888) 20 QBD 835 and Amand v Home Secretary [1943] AC 147. The Court therefore had no jurisdiction. The court observed that only the House of Lords could entertain an appeal against the Divisional Court’s decision in a criminal matter, subject to the applicable procedural rules.

• Court of Appeal (Civil Division): On 29 August 2002, dismissed the proposed appeal because the court lacked jurisdiction. [2002] EWCA Civ 1248
• Administrative Court Divisional Court: On 27 May 2002, Sedley LJ and Gage J refused permission to seek judicial review of the costs assessment, on the grounds that the application was out of time and lacked merit.