Hull And Holderness Magistrates' Court v Darroch & Anor [2014] EWHC 4184 (Admin)

[2014] EWHC 4184 (Admin)Case No CO/4628/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/12/2014
Before
THE HON. MR JUSTICE FOSKETTTHE HON MRS JUSTICE CARR DBE
Between
HULL AND HOLDERNESS MAGISTRATES' COURTRespondent1) ALISTER CHARLES DARROCHApplicants2) CHARLES JOSE DARROCHApplicantMEDIA PROTECTION SERVICES LIMITEDInterested Parties(2) FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITEDInterested Party
Mr Ashley Roughton (instructed by Smithfield Partners) for ApplicantsMr Richard Millett Q.C and Mr Edward Brown (instructed by DLA Piper UK LLP) for Second Interested PartyHearing Hearing date: 26th November 2014
JudgmentThe Hon. Mrs Justice Carr:Introduction
[1]This is the judgment of the court.[2]By application dated 5th June 2014 Mr Alister Darroch and Mr Charles Darroch (“the Applicants”) apply for a third party costs order against one of two interested parties, namely the Football Association Premier League Limited (“FAPL”). The application notice itself reads as follows :
“We are asking the Court to determine whether, on what basis and to what extent the Interested Parties should bear the costs of the Applicants’ successful application for judicial review, including the costs below.”
In the event, the application has been pursued only against FAPL and then in respect only of the Applicants’ costs below in the Hull and Holderness Magistrates’ Court.[3]FAPL is owned by the twenty constituent football teams of the Premier League. Its revenues are directed towards the promotion of association football in the United Kingdom and abroad. It has played no part in these proceedings before being served with the costs application. It resists the application on the ground that there is either no jurisdiction to make a costs order against it, or in the alternative, no justification for such an order.

Background

[4]The application arises out of the Applicants’ successful appeal to quash their convictions for summary offences pursuant to s.297 of the Copyright, Designs and Patents Act 1988 (“s.297”).[5]Section 297 provides :
“297.— Offence of fraudulently receiving programmes. (1) A person who dishonestly receives a programme included in a broadcasting service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale. (2) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly. In relation to a body corporate whose affairs are managed by its members “director” means a member of the body corporate.”
[6]The Applicants, who are father and son, operated a number of public houses in the Humberside area at which they showed live televised football matches through BSkyB (“Sky”). Having formed the view that Sky charged too much, they found another (cheaper) supplier. As a result from 2009 they procured access to feeds of English Premier League football matches which originated from non-UK based broadcasters. The programmes of the matches which the Applicants screened were found to have had been intended to be received or viewed solely in Albania, North Africa and the Middle East, and thus outside the European Union.[7]Sky charges a subscription for all its live Premier League football. In obtaining foreign feeds the Applicants obtained the benefit of Premier League football at little or no cost. Inevitably, the use of such feeds depresses the revenue stream to FAPL and, according to FAPL, in turn the revenue for distribution to association football clubs and “grass roots” football.[8]The principal burden of enforcement of s.297 is said to rest with FAPL (because of resource pressures on the police and the Crown Prosecution Service). To this end FAPL engaged Media Protection Services Limited (“MPS”) to investigate and prosecute offending publicans, for which services it remunerated MPS. Amongst other things it provided MPS with an indemnity in respect of claims against MPS arising as a result of or pursuant to the proper fulfilment by MPS of its obligations.[9]MPS is an organisation said to be wholly independent of FAPL. Kenneth Parker J in Media Protection Services Ltd v Crawford and another [2013] 1 WLR 1068 (“Crawford”) (at paragraph 44) said this:
“….MPS was independent of FAPL and was carrying out its own independent commercial activities in laying the relevant information.”
[10]The Applicants were arrested by Humberside police on 1st February 2010 following raids on the public houses being operated by them. The police then took no further action. MPS, however, commenced a private prosecution in June 2010. That prosecution led to the Applicants’ convictions at Hull and Holderness Magistrates Court (District Judge Rutherford) on 16th February 2011 following a two-day trial. Both sides were there represented by junior counsel, each of whom provided written submissions to the Court of which we have also had sight. Upon conviction, substantial fines were imposed on the Applicants, together with an adverse costs order. The fines totalled £60,000 and a costs order of some £25,000 was made.[11]The twenty two informations leading to the Applicants’ convictions had been laid before the court by a director of MPS, a Mr Raymond Hoskin.[12]The Applicants appealed by way of case stated pursuant to s.111 of the Magistrates’ Court Act 1980 against conviction and sentence on 9th March 2011.[13]Pending those appeals the Divisional Court gave judgment in Crawford (see paragraph 9 above). It held that the laying of information by Mr Hoskin was a nullity as it constituted a “reserved legal activity” within the meaning of s.12 of the Legal Services Act 2007 for which activity Mr Hoskin was not authorised. (It was in this context that Kenneth Parker J made the observation referred to in paragraph 9 above, namely that MPS was independent of FAPL and carrying out its own independent commercial activities in bringing the prosecution. He saw force in the submission that, had FAPL assumed corporate control of MPS, an executive of such a merged entity, as a party to the proceedings, could lay an information without infringing s.20 of the Solicitors Act 1974.)[14]In the light of this conclusion, on 20th May 2014 the Applicants’ convictions were also duly quashed by the Divisional Court (Treacy LJ and Nicol J). On that occasion, the Applicants say that, as a pragmatic solution which they accepted, no order as to the costs of appeal was made. However, now sitting as the Administrative Court, it was directed that if any other costs were to be sought against anyone other than MPS (or Hull and Holderness Magistrates’ Court) an application notice had to be issued within twenty-one days. That order led to the issuing of the application that ultimately came before us sitting as a Divisional Court.[15]MPS is now in liquidation and Mr Hoskin is deceased. In these circumstances, and as already indicated, the Applicants now seek their costs below from FAPL.

Murphy v MPS [2012] EWHC 529 (Admin) (“Murphy”) : the costs ruling

[16]It is convenient, before turning to the legislation and submissions before us, to summarise the costs ruling in Murphy which forms the basis of the Applicants’ application to this court.[17]The ruling in Murphy arose out of separate litigation which itself had given rise to six substantive and reported decisions. The High Court, Court of Appeal and Court of Justice of the European Union (“the CJEU”) considered the compatibility of the offence created by s.297 with European law in circumstances where the foreign television feeds were procured from operators in other member states. The CJEU concluded (see its report at [2012] 1 CMLR 29) that a prohibition on the sale by European broadcasters of decoders outside their territory (allowing for receipt of feeds in the UK) from other member states was contrary to European Law. Mrs Murphy’s defences (based on European free movement principles) succeeded.[18]For the avoidance of doubt, the prohibition on sale by non-European broadcasters of decoders outside their territory (allowing receipt of feeds from non-member states), such as those found by the District Judge to have been obtained by the Applicants in this case, was not addressed in Murphy.[19]Against that background the appeal before the Divisional Court in Murphy (Stanley Burnton LJ and Barling J)was allowed on 24th February 2012. The question of costs was dealt with in a separate judgment: [2013] 3 CMLR 46.[20]The principal issue in relation to costs was whether or not the parties’ costs should be determined under the civil or criminal costs regime.[21]On this issue the Divisional Court held that the civil costs regime applied. The essential reasoning of the court can be seen in the following passage:
“14. Neither Mr Howe QC nor Mr Mellor QC was able to make any submission as to the criteria to be applied by this Court for the purpose of deciding whether to apply the civil costs regime or the criminal costs regime. Nor did they refer to any authority that might guide us. 15. Clearly, save in exceptional cases, prosecutions and appeals in criminal cases should be and will be subject to the criminal costs regime. However the present case is unusual. The prosecution was brought by the respondent in order to protect a very substantial profit stream for the Football Association Premier League Ltd (“the FAPL”). It was treated by both parties as a test case, involving substantial legal resources, including two silks for the appellant and two silks and three junior counsel for the respondent for the hearing on 29 and 30 November 2007, and two silks and a junior for the appellant and two silks and two junior counsel for the respondent on 25 and 26 June 2008. Both hearings were conducted in a manner indistinguishable from a hearing in the Chancery Division or before the Civil Division of the Court of Appeal in which substantial sums are in issue. This was very far from being a typical appeal against a conviction for a summary offence, which is what section 297(1) creates. 16. In our judgment of 16 July 2008 [2008] EWHC 1666 (Admin) we said, at paragraph 60: “We…voice our unease about the bringing of a prosecution under s.297(1) in circumstances where the establishment of an essential element in the offence, namely “intent to avoid payment of any charge applicable to the reception of the programme”, depends upon the compatibility with EC law of an export ban imposed in a licence agreement between two companies who are legally strangers to the purchaser and user of the decoder card in question who is the defendant to the criminal charge. Our unease at this use of s.297(1) exists notwithstanding the additional requirement of dishonesty, and regardless of whether the export restriction and resultant absolute territorial protection are ultimately held to be enforceable. It seems to us unlikely that the legislature would have envisaged that the applicability of the avoided charge to the programme received by a defendant would be dependent upon something so remote from that defendant’s own knowledge.”
This unease was particularly relevant in connection with the present prosecution, in which the appellant’s case was always that she relied on the legal advice given to her by her solicitor. The appropriate procedure to challenge that advice was a claim in the civil courts. 17. The reality is that these proceedings were part of a broader campaign to protect a private interest of the FAPL. Of course, private prosecutors may prosecute cases that affect their private interest. Shoplifting prosecutions are an obvious example. But those cases involve general dishonesty rather than the question whether the defendant genuinely relied on a solicitor’s legal advice. Indeed, the finding of the Crown Court that the appellant “hid behind the legal advice as a convenient shield behind which to hide her dishonesty” is questionably adequate. The factual findings made by District Judge Sanders in the judgment to which we have referred fortify us in this conclusion, in particular his finding that FAPL retain overall control of the prosecutions brought by MPS and that FAPL has given MPS an indemnity against any award of damages and any order for costs made against it. It is finally difficult to believe that a public prosecutor, concerned that a defendant should not be wrongly convicted, would have resisted the application for a reference to the Court of Justice, and would have submitted, as the respondent did in its skeleton argument for the 2007 hearing in this Court, that “There is no matter of EU law for the Court justifying a reference under Article 234 EC …, this court can reject the Appellant’s case on EU law with complete confidence…” 18 It is noteworthy that before us the respondent conceded, in the course of the hearing on 25 to 26 June 2008, that the finding of dishonesty against Mrs Murphy could not stand if the geographical restriction imposed on the use of her Nova decoder card were held to be unlawful and unenforceable as a matter of EU law (see paragraph 67 of our judgment of 16 July 2008 [2008] EWHC 1666 (Admin)). 19 In our judgment, these circumstances justify the application of the civil costs regime.”[22]Mrs Murphy succeeded in recovering all of her (very considerable) costs of appeal and 75% of her (much smaller) costs below.

Relevant costs legislation: the criminal costs regime

[23]Section 16 of the Prosecution of Offences Act (“the POA”) provides materially as follows :
“(5) Where – a) in any proceedings in a criminal cause or matter are determined before a Divisional Court of the Queen’s Bench Division; … the court may make a defendant’s costs order in favour of the accused. (6) A defendant's costs order shall, subject to the following provisions of this section, be for the payment out of central funds, to the person in whose favour the order is made, of such amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings. (7) Where a court makes a defendant's costs order but is of the opinion that there are circumstances which make it inappropriate that the person in whose favour the order is made should recover the full amount mentioned in subsection (6) above, the court shall— (a) assess what amount would, in its opinion, be just and reasonable; and (b) specify that amount in the order. … (9) Subject to subsection (7) above, the amount to be paid out of central funds in pursuance of a defendant's costs order shall— (a) be specified in the order, in any case where the court considers it appropriate for the amount to be so specified and the person in whose favour the order is made agrees the amount; and (b) in any other case, be determined in accordance with regulations made by the Lord Chancellor for the purposes of this section.” a) in any proceedings in a criminal cause or matter are determined before a Divisional Court of the Queen’s Bench Division; the court may make a defendant’s costs order in favour of the accused. (a) assess what amount would, in its opinion, be just and reasonable; and (b) specify that amount in the order. (a) be specified in the order, in any case where the court considers it appropriate for the amount to be so specified and the person in whose favour the order is made agrees the amount; and (b) in any other case, be determined in accordance with regulations made by the Lord Chancellor for the purposes of this section.”
[24]The detailed mechanism for the payment of such costs is set out in the Costs in Criminal Cases General Regulations 1986 (1986 No 1335).[25]Section 19B of the POA permits the Magistrates’ Court, the Crown Court and the Court of Appeal (but notably not the Divisional Court) to make an order for the payment of costs against a third party. Section 19B(3) establishes the conditions for such an order, namely where:
“(a) there has been serious misconduct (whether or not constituting a contempt of court) by the third party, and (b) the court considers it appropriate, having regard to that misconduct, to make a third party costs order against him.”
[26]The discretion is repeated in those terms in the secondary legislation contemplated by s.19B(1), namely the Costs in Criminal Cases (General) Regulations 1986 (SI 1986 No 1335) (at paragraph 3F).

Relevant costs legislation: the civil costs regime

[27]Section 51 of the Senior Courts Act 1981 (“the SCA”) provides: “51. Costs in civil division of Court of Appeal, High Court and county courts. (1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in— (a) the civil division of the Court of Appeal; (b) the High Court; and (c) any county court, shall be in the discretion of the court. … (3) The court shall have full power to determine by whom and to what extent the costs are to be paid.

(b) the High Court; and (c) any county court,

[28]Section 28A of the SCA provides:
“28A Proceedings on case stated by magistrates’ court or Crown Court. (1) This section applies where a case is stated for the opinion of the High Court— (a) by a magistrates’ court under section 111 of the Magistrates’ Courts Act 1980; or (b) by the Crown Court under section 28(1) of this Act. (2) The High Court may, if it thinks fit, cause the case to be sent back for amendment and, where it does so, the case shall be amended accordingly. (3) The High Court shall hear and determine the question arising on the case (or the case as amended) and shall— (a) reverse, affirm or amend the determination in respect of which the case has been stated; or (b) remit the matter to the magistrates’ court, or the Crown Court, with the opinion of the High Court, and may make such other order in relation to the matter (including as to costs) as it thinks fit.” (a) by a magistrates’ court under section 111 of the Magistrates’ Courts Act 1980; or (b) by the Crown Court under section 28(1) of this Act. (a) reverse, affirm or amend the determination in respect of which the case has been stated; or (b) remit the matter to the magistrates’ court, or the Crown Court, with the opinion of the High Court, and may make such other order in relation to the matter (including as to costs) as it thinks fit.”

The issues

[29]It should be noted at the outset that this is not an application for payment of costs from public funds pursuant to s.16(5)(a) of the POA (which, as set out above, permits the Divisional Court to make a “defendant’s costs order” in any proceedings in a criminal cause or matter determined before the Divisional Court).[30]No application for a costs order against FAPL has been made under s.19b of the POA: that section does not empower this Court to make a third party costs order and it cannot, in any event, be said that there has been any “serious misconduct” by FAPL (see paragraph 25 above).[31]The primary question, on the basis of the way the Applicants’ case has been advanced, is whether or not the reasoning in Murphy leads to a conclusion that a civil costs order against FAPL can and should be made in the Applicants’ favour in respect of their costs below.[32]Mr Roughton for the Applicants submitted that this was a case essentially on all fours with Murphy. The prosecution, he contended, was again brought to protect FAPL’s profit stream and as part of a broader campaign. The Applicants also relied on advice from their solicitor as to the legitimacy of what they did as part of their denial of dishonesty, as indeed did Mrs Murphy. He contended that this was also a test case, referring to arguments (which he described as “Euro-points”)advanced below. In short summary, those submissions covered the following : a) copyright subsistence: there could not be any dishonest (or conscious disregard) of the exclusive rights of the broadcaster, since no exclusive rights existed or were proved; b) the broadcast argument: the programme received by the Applicants was not “in a broadcasting service”because it was extracted material which was only streamed via broadband to the public houses; c) incompatibility: s.297 is invalid as being incompatible with EU Council Directive 93/83/EEC of 27th September 1993 on the co-ordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission. These were matters, all of which (for the avoidance of doubt) are contested by the FAPL, but which were not addressed in the Murphy litigation. But for the decision in Crawford (see paragraph 13 above) all of these arguments would have been tested fully in this Court.[33]The Applicants would, Mr Roughton submits, therefore, for like cause, be entitled to a costs order against MPS just as Mrs Murphy was entitled to her costs against MPS.[34]Then, following the reasoning of Lord Brown of Eaton-under-Heywood in Dymocks Franchise Systems (NSW) Ltd v Todd [2004] 1 WLR 2807 (“Dymocks”),that entitlement should be extended to an entitlement to a costs order against FAPL. Lord Brown summarised the relevant principles from the authorities as follows (at paragraph 25):
“(1) Although costs orders against non-parties are to be regarded as “exceptional”, exceptional in this context means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense. The ultimate question in any such “exceptional” case is whether in all the circumstances it is just to make the order. It must be recognised that this is inevitably to some extent a fact-specific jurisdiction and that there will often be a number of different considerations in play, some militating in favour of an order, some against. (2) Generally speaking the discretion will not be exercised against “pure funders”, described in para 40 of Hamilton v Al Fayed (No 2) [2003] QB 1175, 1194 as “those with no personal interest in the litigation, who do not stand to benefit from it, are not funding it as a matter of business, and in no way seek to control its course”
. In their case the court's usual approach is to give priority to the public interest in the funded party getting access to justice over that of the successful unfunded party recovering his costs and so not having to bear the expense of vindicating his rights. (3) Where, however, the non-party not merely funds the proceedings but substantially also controls or at any rate is to benefit from them, justice will ordinarily require that, if the proceedings fail, he will pay the successful party's costs. The non-party in these cases is not so much facilitating access to justice by the party funded as himself gaining access to justice for his own purposes.”[35]It was submitted that FAPL was the Applicants’ effective and real prosecutor. FAPL “at any rate” benefited from the prosecution, it is argued. The proceedings effectively prevented the Applicants from carrying on their activities and the findings of dishonesty would end their ability to trade. FAPL exercised considerable control over MPS’ activities, as evidenced by the correspondence between them.[36]For FAPL Mr Millett QC submitted that the order sought was wholly novel and without precedent. He raised the following headline objections : a) this Court does not have jurisdiction to apply the civil costs regime and make the order sought; b) in any event, this was not an exceptional case such as Murphy was, and the discretionary factors required for a third party costs order were not met.

Ruling

[37]The Court in Murphy did not address directly the issue of the jurisdiction to make a third party costs order. It addressed directly, however, the question of whether or not to apply the civil costs regime or the criminal costs regime in relation to the costs arising from a criminal prosecution in the Magistrates’ Court. It decided to apply the civil costs regime for the reasons set out in paragraphs 14 to 19 of its judgment quoted in paragraph 21 above. Since the Applicants’ case has been presented on the basis that the decision in Murphy represents the legal framework for this Court’s decision, we address this application primarily on that basis.

Exceptional case?

[38]The issue, therefore, is whether “exceptional circumstances” exist on the facts in this case to justify an award of costs against FAPL.[39]We are not persuaded that they do for the following reasons: a) the only costs for our consideration are the costs below; b) the proceedings below were not so unusual as to be exceptional. The hearing was a short one, lasting two days (followed by a short oral judgment); c) although points of law were raised, the matter was conducted like many prosecutions with junior counsel on both sides. The mere fact that points of European law were raised did not, without more, take a case into the category of being an “exceptional” case or a “test” case. There was no reference to the CJEU; d) Murphy, by contrast, was undoubtedly a “test case”. Indeed it determined the copyright subsistence/“exclusive rights”issue sought to be re-argued by the Applicants (see paragraphs 43 and 44 of Karen Murphy v Media Protection Services Ltd [2007] EWHC 3091 (Admin)); e) whilst it might be said that the full appeal would have raised novel issues, that appeal has never proceeded. The costs of such an appeal are not before us; e) equally, the fact that a non-party has a strong financial interest in the prosecution does not make it an “exceptional” situation entitling a defendant to secure a costs order against it. There was in addition a public interest being served (in terms of upholding and enforcing the criminal law).[40]Accordingly, in our judgment, there is nothing “exceptional” about this case and it should remain subject to the criminal costs regime in the ordinary way.[41]We are reinforced in this view by the line of authorities that includes Symphony Group plc v Hodgson [1994] QB 179. An order for the payment of costs by a non-party is always exceptional and any application should be treated with caution. The court must, amongst other things, be alert to the possibility that an application for costs against a non-party is motivated by resentment of an inability to obtain an effective order for costs against a legally aided (or otherwise impecunious) litigant. There is no doubt that the reason for this application is MPS’ impecuniosity.[42]Although FAPL stands to benefit financially (even if only indirectly) from a successful prosecution (and so on the face of it falls within paragraph 25(3) of the judgment in Dymocks), a broader consideration does not suggest that a third party costs order would here be just in all the circumstances. These were criminal proceedings with a public, as well as a private, interest.

Jurisdiction

[43]In these circumstances it is not necessary for us to determine the jurisdictional question that Mr Millett raises. To accept his submission on this issue we would have to be convinced that the conclusion in Murphy on this issue was wrong: Commissioner of Revenue & Customs v Berriman [2007] EWHC 1183 (Admin) and R v Greater Manchester Coroner ex parte Tai and another [1984] 1 QB 67.[44]In Murphy the question of jurisdiction was conceded and it was common ground that the Divisional Court had jurisdiction to apply the civil costs regime (as well as the criminal costs regime). The question was which regime was the more appropriate in all the circumstances. That is apparent from paragraphs 7 and 8 of the judgment in particular :
“7. It is common ground that this Court has power to order costs here and below pursuant to sections 28A and 51 of the Senior Courts Act 1981. We have referred to the power under, in particular, section 51 as the civil regime. Section 28A confers power on this Court, on an appeal by way of case stated by the magistrates’ court or the Crown Court to “make such…order in relation to the matter (including as to costs) as it thinks fit”
. Section 51(1) provides that subject to the provisions of the 1981 Act or any other enactment or to rules of court, the costs of and incidental to all proceedings in (among others) the High Court shall be in the discretion of the court. Subsection (5) provides that nothing in subsection (1) shall alter the practice in any criminal cause or matter. 8. It was not suggested by Mr Mellor QC, for the respondent, that there is any provision of the 1981 Act, or any other enactment or rule of court, or practice in criminal causes or matters, that constrains the exercise of the power or the discretion of the Court under section 51. However he submitted that this being a criminal cause or matter, the appropriate jurisdiction for the Court to exercise is that under to section 19 of the Prosecution of Offences Act 1985 and Regulation 3 of the Costs in Criminal Cases General Regulations 1986 and/or pursuant to section 16 of the Prosecution of Offences Act 1985. We have referred to this jurisdiction as the criminal costs regime.”[45]The Court was not taken to Westminster City Council v Wingrove [1991] 1 QB 652 (“Wingrove”) upon which Mr Millett relies. There the Divisional Court considered a defence application for payment of interest on taxed costs in accordance with ss.17 and 18 of the Judgments Act 1838. It dismissed the application, holding that the power of the High Court to award interest on a judgment debt or order for costs under the Judgments Act 1838 applied only to civil proceedings. In the absence of any statute, regulation or order the court could not award interest in a criminal matter. Since there was no relevant statutory provision no interest could be awarded. The Court was taken to s.51 of the Supreme Court Act 1981 which read :
“(1) Subject to the provisions of this or any other Act and to rules of court, the cost of and incidental to all proceedings in the civil division of the Court of Appeal and in the High Court, including the administration of estates and trusts, shall be in the discretion of the court, and the court shall have full power to determine by whom and to what extent the costs are to be paid. (2) Nothing in subsection (1) shall alter the practice in any criminal cause or matter…”
[46]It was thus materially identical to s.51(1), (3) and (5) of the SCA 1981. The Divisional Court stated (at 658F) that this section could not - “…possibly assist [the defendants]. The very provisions themselves clearly exclude application to criminal proceedings.”[47]The power in s.51 of the SCA 1981 is expressly subject to any other enactment. Thus it is, amongst other things, subject to s.19b of the POA which, Mr Millett submits, on its face circumscribes tightly the scope and sets the conditions for the making of third party costs orders in criminal proceedings. That Parliament did not intend s.51 to create a separate broad jurisdiction entitling the Court to make a civil third party costs order in criminal proceedings is, he submits, supported by s.51(5), as confirmed by Wingrove.[48]Mr Millett reviewed the legislative history. As for s.28A of the SCA 1981, he draws attention to the fact that this section was introduced by the Statute Law (Repeals) Act 1993 and was a re-enactment of s.6 of the Summary Jurisdiction Act 1857 (as amended by s.154 and Schedule 7 to the Magistrates Court Act 1980) and, consequently, did not represent a change in the law. His argument is that it is a provision that has therefore been in existence for over a century and it has never been suggested hitherto as a basis for a civil third party costs order in relation to costs incurred below in the Magistrates’ Court.[49]He contends that s.28A(3) cannot circumvent or be taken to create a new and wider power than s.51. He says that it is essentially a procedural provision concerning the High Court’s powers on a case stated from an inferior court.[50]Looking at the matter on the merits, against all these arguments is the proposition that unless s.51 or s.28A of the SCA 1981 empowers the Divisional Court to make a civil third party costs order in criminal proceedings, then there is no jurisdiction at all for this Court to make a third party costs order in criminal proceedings because s.19(b) of the POA does not apply to the Divisional Court. Section 28A may thus be designed to fill that lacuna. Whether or not that is the rationale for the practice that has developed over the years is unclear, but reference to the [Senior Courts] Practice Direction (Criminal Proceedings : Costs) [2013] EWCA Crim 1632 (“the Practice Direction”) demonstrates that the jurisdiction has been assumed for many years. The Practice Direction has been issued by successive Lord Chief Justices from at least 1989 onwards. The Practice Direction, which was issued on 3rd October 2013, and its immediate predecessor (issued in 2010) contained the following wording :
“3.8 The High Court is not covered by section 18 of the Act but it has complete discretion over all costs between the parties in relation to proceedings before it : section 51 of the Senior Courts Act 1981… 4.5 Wasted costs orders in the High Court 4.5.1 In the High Court (Divisional Court) where the court is considering whether to make an order under section 51(6) of the Senior Courts Act 1981….it will do so in accordance with CPR 46.8….”
[51]The above passages in the Practice Direction appear to indicate that s.51 of the SCA 1981 is available to the Divisional Court when dealing with costs in criminal cases. We note also that the following opening paragraph in the Practice Direction states :
“The powers enable the court to award costs in criminal proceedings are primarily contained in Part II of the [POA]...”
(emphasis added)[52]Whilst a Practice Direction cannot alter the substantive law, one of such effective long-standing is persuasive evidence that the decision in Murphy is correct and that Wingrove should be seen as being confined to its own facts.[53]As we have said above, it is ultimately not necessary for us to determine the jurisdictional question to dispose of this application. Had we felt it necessary to do so then, given the recent decision in Murphy, supported by the Practice Direction, we would not have regarded the acceptance of the applicability of the civil costs regime in this context as wrong.

Conclusion

[54]For these reasons, we dismiss the application. FAPL has indicated that it will not seek its costs against the Applicants.

Cited in 7 later judgments