Darroch & Anor v Football Association Premier League Ltd

An order determining costs in High Court proceedings which constitute a criminal cause or matter is itself a judgment in a criminal cause or matter. Section 18(1) of the Senior Courts Act 1981 therefore excludes an appeal to the Court of Appeal.

Judicial review proceedings used to quash convictions retain their criminal character despite their civil form. A costs application made at the conclusion of those proceedings is an inherent part of them, not a wholly collateral civil matter.

Further, section 51 of the 1981 Act does not authorise the High Court to award civil costs relating to the underlying Magistrates’ Court or Crown Court proceedings. Such costs are governed by express appellate powers and the statutory criminal costs regime.

The appellants were convicted in the Magistrates’ Court of offences arising from the unauthorised streaming of Premier League football matches. The prosecutions were brought privately by Media Protection Services Ltd. The High Court subsequently treated their case-stated appeal as judicial review proceedings and quashed the convictions because the informations had been laid without proper authority.

The appellants then sought a civil non-party costs order against the Football Association Premier League Ltd for their Magistrates’ Court costs under section 51 of the Senior Courts Act 1981. The Divisional Court followed Murphy v Media Protection Services Ltd (No 2) [2012] EWHC 529 (Admin) but refused the application because the circumstances were not exceptional.

The appeal raised whether the Court of Appeal had jurisdiction, given the statutory exclusion of appeals from High Court judgments in criminal causes or matters. It also raised, obiter, whether section 51 conferred the costs power claimed.

1. Appeal dismissed for want of jurisdiction. The case-stated proceedings were a criminal cause or matter. Their conversion into judicial review proceedings to permit the convictions to be quashed on a ground outside the case stated did not alter that character. Judicial review proceedings may be civil in form while remaining a criminal cause or matter for section 18(1) of the Senior Courts Act 1981.

2. The determination of costs at the end of such proceedings is an inherent part of the exercise of the High Court’s jurisdiction. It is not wholly collateral to the proceedings. The substantive order and its accompanying costs order could not sensibly have different appellate routes. R v Steel (1876) 2 QBD 37 supported the conclusion that even proceedings concerning taxation of a criminal costs order are a criminal cause or matter. The Court of Appeal consequently had no jurisdiction.

3. Obiter: section 51 does not empower the High Court, on a case-stated appeal or judicial review seeking to quash convictions, to make a civil costs order for costs incurred in the underlying Magistrates’ Court or Crown Court proceedings. Those costs are neither costs of nor incidental to the High Court proceedings. Proceedings below and appellate proceedings are separate for this purpose.

4. Obiter: appellate courts may deal with lower-court costs only through powers expressly conferred by legislation or rules. On a case-stated appeal, section 28A of the 1981 Act permits orders concerning the underlying proceedings, but the applicable costs regime is that established by the Prosecution of Offences Act 1985. A non-party costs order under section 19B requires serious misconduct.

5. Obiter: in judicial review proceedings concerning a conviction, section 51 is also constrained by other statutory provisions and by the requirement not to alter practice in a criminal cause. The contrary approach in Murphy v Media Protection Services Ltd (No 2) [2012] EWHC 529 (Admin), including its exceptionality threshold, rested on a mistaken concession as to jurisdiction and was disapproved.

Lady Justice Hallett and Sir Brian Leveson P agreed with Lord Justice Burnett. Sir Brian Leveson also endorsed the decision to address the merits because of the practical importance of the issue.

1. Court of Appeal (Civil Division): Dismissed the appeal because section 18(1) of the Senior Courts Act 1981 excluded its jurisdiction. The court also concluded obiter that section 51 did not confer the claimed costs power.

2. Divisional Court: Refused a civil non-party costs order against the League. It followed the approach in Murphy v Media Protection Services Ltd (No 2) [2012] EWHC 529 (Admin) but held that the required exceptionality threshold was not met.

3. Earlier Divisional Court proceedings: Treated the appellants’ case-stated appeal as judicial review proceedings, waived formalities and quashed all 22 convictions. It directed the Magistrates’ Court to enter not-guilty decisions and made no order for the costs of the High Court proceedings.

4. Hull and Holderness Magistrates’ Court: Convicted the appellants of 22 offences under section 297 of the Copyright, Designs and Patents Act 1988, imposed fines totalling £66,000 and ordered £25,000 in prosecution costs.