Oliver Lewis v Sarah Louise Francis & Anor

Although criminal costs rules ordinarily govern costs in criminal causes or matters, the court may exceptionally apply the civil costs regime where the combination of circumstances would otherwise make a successful appeal practically worthless. The exceptionality question is fact-sensitive. Relevant features may include an appeal confined to costs, the absence of a conviction, an appeal brought by the prosecutor, complex issues and the need for expert legal representation. On a case stated appeal, Senior Courts Act 1981, section 28 A(3) permits an order as to costs notwithstanding the criminal costs practice preserved by section 51(5). Where the appellant is substantially successful, the court may order the respondents to pay a proportion of reasonable inter partes costs.

This was a supplemental judgment on the costs of an appeal by case stated. In the main judgment, cited as [2025] EWHC 17 (Admin), the court allowed the appellant’s appeal and set aside a magistrates’ court order requiring him to pay the respondents’ costs of unsuccessful statutory nuisance proceedings.

The respondents were instead awarded most of their costs from central funds, while the appellant sought recovery of his appeal costs. The central issues were whether the criminal costs regime applied, whether the exceptional civil-costs approach recognised in Murphy remained available, and, if so, how the costs discretion should be exercised.

1. Costs regime. The criminal costs regime ordinarily applies to a criminal cause or matter. However, the exception recognised in Murphy remains good law despite the contrary obiter view expressed in Darroch. Whether the exception applies is fact-sensitive.
2. Exceptional circumstances. The combination of features in this appeal was exceptional: the appeal concerned costs only; there had been no conviction; it was brought by the prosecutor; it raised complex issues; and effective argument required legal representation. Without civil-costs recovery, the right of appeal would have been practically worthless.
3. Statutory power. Section 51(1) of the Senior Courts Act 1981 is subject to section 28 A. Section 28 A(3), applying to an appeal by case stated, empowers the High Court to make any other order, including as to costs, as it thinks fit. Applying the civil regime in an exceptional case does not contravene section 51(5).
4. Exercise of discretion. Under CPR rules 44 and 44.2, the appellant was the successful party because he no longer had to pay the respondents’ costs, despite the respondents retaining most of their costs from central funds. The respondents’ decision to seek costs under section 19 of the Prosecution of Offences Act 1985, without alternatively seeking central-funds costs under section 16, contributed more directly to the appeal. Their legal representatives also had duties to assist the unrepresented appellant and the court.
5. The respondents were ordered to pay 65 per cent of the appellant’s reasonable costs, summarily assessed at £5,492.44. The balance was not ordered because the respondents had been acquitted and had not themselves caused the original prosecution.

The judgment records that the appeal by case stated was allowed in the main judgment, cited as [2025] EWHC 17 (Admin). This supplemental judgment determined the inter partes costs of that appeal.