Hull And Holderness Magistrates' Court v Darroch & Anor

A Divisional Court may have power to apply the civil costs regime in criminal proceedings, but a third-party costs order remains exceptional. A prosecution conducted as an ordinary summary prosecution does not become exceptional merely because a private body has a financial interest, points of European law are raised, or the prosecution serves both public and private interests. The court must consider whether an order is just in all the circumstances. A short hearing with junior counsel and no reference to the CJEU was materially different from a test case involving extensive legal resources and novel issues. The inability to recover costs from an impecunious prosecutor is not, by itself, sufficient justification for ordering costs against its funder or commercial associate.

The applicants had been convicted in the magistrates’ court of offences under section 297 of the Copyright, Designs and Patents Act 1988 after showing foreign satellite feeds of Premier League football. Their convictions were later quashed because the informations had been laid by a person unauthorised to conduct a reserved legal activity.

The prosecutor, Media Protection Services Ltd, was in liquidation. The applicants therefore sought an order requiring the Football Association Premier League Ltd to pay their costs incurred below. They relied principally on the costs ruling in Murphy v MPS, where the civil costs regime had been applied to unusual test-case criminal proceedings. The central questions were whether the present case was similarly exceptional and whether a third-party costs order against FAPL was just.

1. Application dismissed. The applicants were not entitled to recover their magistrates’ court costs from FAPL. FAPL did not seek its own costs.
2. The court treated Murphy v MPS as the relevant framework. Although that decision accepted that the Divisional Court could apply the civil costs regime, it concerned an exceptionally unusual test case. The present prosecution lasted two days, was conducted with junior counsel, and did not involve a reference to the CJEU. The fact that points of European law were raised did not, without more, make it exceptional.
3. The applicants’ proposed appeal might have raised novel issues, but it never proceeded. The costs of that proposed appeal were therefore irrelevant to the application concerning costs below. The financial interest of FAPL in successful prosecutions was also insufficient. The proceedings served a public interest in enforcing the criminal law as well as FAPL’s private interest.
4. Third-party costs orders are exceptional and require caution. The governing question is whether an order is just in all the circumstances. The court was particularly alert to the possibility that the application was motivated by the prosecutor’s impecuniosity. Although FAPL might fall within the category of a non-party that benefits financially from proceedings, that factor did not make an order just here.
5. The jurisdictional issue was left undecided because it was unnecessary to dispose of the application. The court observed that Murphy v MPS, supported by the long-standing Senior Courts Practice Direction (Criminal Proceedings: Costs), provided persuasive support for the availability of the civil costs regime in this context. Westminster City Council v Wingrove was treated as confined to its own facts.

The applicants’ convictions were quashed by the Divisional Court on 20 May 2014. The present application was then issued seeking costs incurred in the magistrates’ court from FAPL. This Divisional Court dismissed the costs application.