IPE Marble Arch Limited v Anthony Moran

Applications concerning voluntary bills of indictment are criminal proceedings for costs purposes. The fact that the application is heard in the High Court, or is governed procedurally by the Criminal Procedure Rules, does not bring it within the ordinary civil costs regime.

Section 51 of the Senior Courts Act 1981 is subject to the preserved practice in criminal causes. Costs in criminal proceedings are therefore governed by the statutory criminal costs regime, except in the very narrow category of exceptional cases identified in Murphy v Media Protection Services Ltd. The absence of power to award the costs sought under that regime is not itself an exceptional circumstance. A voluntary bill application is not a separate costs category, and a prior order made on concession does not establish a different practice.

IPE Marble Arch Ltd applied for leave to prefer a voluntary bill of indictment against Anthony Moran. The application was dismissed in an earlier judgment, [2024] EWHC 1375. Mr Moran then sought his costs on the indemnity basis.

The prosecution disputed the High Court’s jurisdiction to make any costs order. The central issue was whether the costs of voluntary bill proceedings were governed by section 51 of the Senior Courts Act 1981 and the Civil Procedure Rules, or instead by the statutory criminal costs regime under Part II of the Prosecution of Offences Act 1985.

1. Application dismissed. The High Court had no power to order the prosecution to pay Mr Moran’s costs under the civil or criminal costs regimes, and no residual inherent power was identified.
2. The voluntary bill application was a criminal cause for the purposes of section 51(5) of the Senior Courts Act 1981. It directly exposed the defendant to the possibility of indictment and trial, identified the prosecutor and defendant, and was made under the Criminal Procedure Rules.
3. Section 51(1) and (3) confer a broad discretion over costs, but section 51(5), read with section 151, preserves the practice in criminal proceedings. The general position is that costs in criminal proceedings are governed by the statutory criminal costs regime. The fact that the High Court lacks power under that regime to make the order sought does not justify using section 51 to fill the gap.
4. The narrow exception recognised in Murphy v Media Protection Services Ltd applies only in exceptional circumstances. The private character of the proposed prosecution, the unusual procedural route, and the absence of an available criminal costs order did not satisfy that threshold. There was no principled basis for treating voluntary bill proceedings differently from judicial review or case-stated proceedings concerning criminal causes.
5. Evans & others v The Serious Fraud Office did not establish a binding practice. The relevant statements were made where the issue of power to award costs had been conceded and had not been argued. The prior order therefore could not determine the present question.
6. Had the civil regime applied, the court would have ordered the unsuccessful prosecution to pay the defendant’s costs on the standard basis. Indemnity costs were not justified because the conduct did not meet the high threshold required for that basis.