Antony Bates, R (on the application of) v Highbury Corner Magistrates’ Court

The High Court retains its general discretion under section 51 of the Senior Courts Act 1981 to make inter partes costs orders in judicial review proceedings concerning criminal matters. The criminal costs regime does not oust that jurisdiction, and section 51(5) does not impose a general exceptionality requirement. The approach in Murphy v Media Protection Services, to the extent that it established such a requirement, was wrong and should not be followed. The discretion remains fact-sensitive and is guided by CPR Part 44 and any established practice. On the facts, a private prosecutor whose vexatious and abusive conduct necessitated judicial review proceedings was ordered to pay the claimant’s costs. Costs incurred in the underlying magistrates’ court proceedings were remitted for assessment under the statutory criminal costs regime.

The claimant successfully challenged a summons issued at the instance of the interested party, a private prosecutor, and the decision to send him to the Crown Court for trial. In the substantive judgment, R (Bates) v Highbury Corner Magistrates’ Court & Westhead [2025] EWHC 184 (Admin), the Divisional Court quashed both decisions.

The present hearing concerned costs. The claimant sought the costs of the judicial review under section 51(1) of the Senior Courts Act 1981 and the costs incurred in the criminal proceedings under section 19 of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986. The central issues were whether the so-called Murphy principle should be followed, whether the High Court could make an inter partes costs order in principle, and whether the underlying costs should be determined by the High Court or remitted.

1. Jurisdiction under section 51. The provisions of the Prosecution of Offences Act 1985 do not oust the High Court’s power under section 51 of the Senior Courts Act 1981 to make inter partes costs orders concerning judicial review proceedings in criminal matters. Sections 16 and 17 of the 1985 Act confer additional powers concerning payment from central funds, while sections 18 and 19 do not apply in the High Court. The regimes supplement each other.
2. No general exceptionality requirement. Section 51(5) preserves the practice in criminal causes, but the court found no established practice at the enactment of the 1981 Act requiring High Court costs applications in criminal matters to be dealt with only under the criminal costs regime. The first sentence of paragraph 15 of Murphy v Media Protection Services [2012] EWHC 529 therefore was not a rule of general application. To the extent that Murphy and later cases treated it as establishing that costs under section 51 could be awarded only in exceptional cases, that approach was wrong and should not be followed.
3. The discretion under section 51 remains fact-sensitive. Its exercise is guided in the usual way by CPR Part 44, subject to any established practice relevant under section 51(5). It does not create general guidance for every criminal judicial review case.
4. The claimant was entitled to his judicial review costs from the interested party. The private prosecution had been found vexatious and an abuse of process, and the interested party had failed to comply with prosecutorial and candour duties. The costs were to be assessed on the standard basis, rather than the indemnity basis.
5. The making of the summons was an unnecessary or improper act or omission for the purposes of section 19 of the Prosecution of Offences Act 1985. The High Court had power under section 66 of the Courts Act 2003 to exercise the powers of a District Judge (Magistrates’ Courts), but remitted the application to the magistrates’ court because full submissions on the reasonable amount had not been heard. Regulation 3(3) required the amount to be determined before the order was made.

• High Court (Administrative Court): In the substantive judicial review judgment, R (Bates) v Highbury Corner Magistrates’ Court & Westhead [2025] EWHC 184 (Admin), the summons and decision to send the claimant to the Crown Court were quashed.
• High Court (Administrative Court): The present Divisional Court ordered the interested party to pay the claimant’s judicial review costs, subject to detailed assessment on the standard basis, and remitted the application for costs incurred in the magistrates’ court.