Murphy v Media Protection Services Ltd

A criminal appeal will ordinarily attract the criminal costs regime. Exceptionally, the court may exercise its general civil costs discretion where the prosecution protects a substantial private commercial interest and the proceedings have the character and resources of major civil litigation.

A successful party’s indemnity or right of contribution from a third party does not defeat recovery from the unsuccessful opponent. The opponent must show that the successful party has no liability to its own solicitors. The court may reflect failure on discrete issues by awarding only a proportion of the costs incurred at earlier stages.

The appellant successfully appealed against her conviction for two offences under section 297(1) of the Copyright, Designs and Patents Act 1988, following a reference to the Court of Justice of the European Union. The Administrative Court had allowed the appeal and reserved costs for separate determination.

The court had to decide whether the civil or criminal costs regime applied; what proportion of the appellant’s costs should be recovered; whether the private prosecutor should receive costs from the appellant or central funds; and whether an interim payment should be ordered.

1. Costs were awarded to the appellant under the civil costs regime. Criminal prosecutions and appeals will ordinarily be governed by the criminal costs regime. This case was exceptional. The private prosecution formed part of a broader campaign to protect the Football Association Premier League’s substantial commercial interests. It was treated as a test case, deployed extensive legal resources and was conducted in a manner indistinguishable from substantial civil litigation. The court’s concerns about using section 297(1) of the Copyright, Designs and Patents Act 1988 in these circumstances also supported application of the civil regime.

2. The appellant was the ultimate successful party and should not have been convicted. The prosecutor had, in effect, sought to enforce an unlawful geographical restriction. Her failure on the non-European-law issues nevertheless justified a reduction in the costs of the proceedings below. The respondent was ordered to pay 75% of her costs in the magistrates’ court, 75% in the Crown Court and all her costs in the Divisional Court, including the costs of the reference to the Court of Justice. The costs were to be assessed on the standard basis if not agreed.

3. After-the-event insurance premiums were recoverable in principle. Their recoverability and amount were matters for the Costs Judge on detailed assessment.

4. The circumstances which justified the civil regime also provided good reason for refusing the private prosecutor’s costs from central funds.

5. A successful party does not lose its entitlement to costs merely because another person has agreed to contribute to, or indemnify it against, its liability to its solicitors. The unsuccessful opponent must show that the successful party has no liability to its solicitors. Suspicions about the appellant’s funding and insurance arrangements did not satisfy that requirement.

6. An interim payment of £100,000 was ordered, payable within 28 days.

1. High Court (Administrative Court): The appeal was allowed following the Court of Justice’s judgment. By this costs judgment, [2012] EWHC 529 (Admin) , the respondent was ordered to pay 75% of the appellant’s costs in each lower court and all her Divisional Court costs.

2. High Court (Administrative Court): At an earlier stage, the court addressed the domestic issues in [2007] EWHC 3091 (Admin) . It subsequently ordered a reference to the Court of Justice and gave judgment in [2008] EWHC 1666 (Admin) .

3. Crown Court at Portsmouth: The appellant’s appeal against conviction was dismissed.

4. Portsmouth Magistrates’ Court: The appellant was convicted of two offences under section 297(1) of the Copyright, Designs and Patents Act 1988.