Overruling previous case law, the court in R (on the application of Bates) v Highbury Corner Magistrates' Court1 held that a private prosecutor can be held responsible for the costs of a defendant’s judicial review challenge to the prosecution being allowed to proceed, as well as the costs from the criminal case. This ruling will help highlight the importance for would-be private prosecutors of the duties which accompany their significant powers given the potential risk of a sizeable cost order if the prosecution were to be successfully challenged.
Private prosecutions
Not all criminal proceedings need be brought by public bodies such as the CPS or the SFO. Section 6(1) of the Prosecution of Offences Act 1985 allows an individual to bring criminal proceedings against a defendant. If the defendant is convicted, the court can order the private prosecutor’s costs to be reimbursed from public funds, as long as they have been “properly incurred.”
Private prosecutions have gained popularity as a method of obtaining justice, particularly where complainants have found public bodies sometimes too slow to act. Between 2014 and 2019, the amount spent on reimbursing private prosecutors for legal costs increased from GBP360,000 to GBP12,287,000.2 In 2023, 26% of defendants dealt with in magistrates’ court were prosecuted by private prosecutors.3
The sharp growth in private prosecutions seems to have come with a corresponding uptick in vexatious or ill-prepared criminal prosecutions. Of the 32 private prosecutions referred to the CPS between 2023 and 2024, the CPS chose to discontinue 20, on the grounds that they did not meet either the evidential or public interest tests for prosecution. The Post Office prosecutions are a high-profile example of poorly conceived private prosecutions.
Bates v Highbury
The case arose from criminal proceedings brought against Mr Tony Bates, the former CFO of Yell Group plc. The proceedings were brought privately by Mr James Westhead, a former shareholder of the company. Mr Westhead alleged that Mr Bates oversaw a complex GBP1 billion fraud against the shareholders, but was unable to provide sufficient evidence to this effect. The SFO, FCA and the Insolvency Service had each considered the allegations but decided not to investigate. Nonetheless, Mr Westhead persuaded the Magistrates’ Court to issue a summons to allow his private prosecution to go ahead.
Mr Bates successfully applied for judicial review of the Magistrates’ Court’s decision to issue the summons and transfer the proceedings to the Crown Court. The High Court found the prosecution to be “misconceived, vexatious and abusive”, and that Mr Westhead had not complied with any of the duties of a private prosecutor. In particular, having omitted key details of concurrent proceedings in the High Court Chancery Division and in the United States, Mr Westhead was held not to have complied with the duty of candour.
Mr Bates sought to recover costs from Mr Westhead – for both the criminal and judicial review proceedings.
Costs of the judicial review
Section 51 of the Senior Courts Act 1981 grants the High Court full discretion over the costs “of and incidental to” all its proceedings, including criminal ones. However, by default, there are different rules that determine costs in civil proceedings (which encompass judicial review) and criminal proceedings. The general rule in civil proceedings, as established by CPR 44.2(2), is that the unsuccessful party is ordered to pay the costs of the successful party. Sections 18-19 of the Prosecution of Offences Act 1985 (1985 Act), meanwhile only allows a defendant to be reimbursed in criminal proceedings if a private prosecutor has acted “improperly or unreasonably.” The question was whether the civil court rules could be applied to the judicial review arising from the criminal proceedings.
The Divisional Court (KBD) had to consider whether a line of cases following Murphy v Media Protection Services4 remained good law. The court in Murphy had ruled that, save in exceptional cases, judicial review challenges to criminal prosecutions should be subject to the criminal costs regime rather than the civil costs regime. The effect of this case and others following was to treat the High Court’s jurisdiction over judicial review costs as overridden by the criminal costs regime. This created a presumption against cost recovery in judicial review proceedings challenging private prosecutions.
The Divisional Court rejected this approach, affirming that ordinary civil costs principles will still apply in the High Court, even where the underlying proceedings have been criminal in character. The court ordered Mr Westhead to pay Mr Bates’s judicial review costs, as assessed on the standard basis.
The court further held that the criminal costs regime does not override the High Court’s usual jurisdiction over costs in civil proceedings, but rather supplements it at the level of criminal proceedings. The court also directed Mr Westhead to pay the costs of the criminal proceedings under s19 of the 1985 Act, as Bates had incurred his costs as a result of Westhead’s “unnecessary or improper act” of bringing ill-considered proceedings.
Comment
The Divisional Court’s clarification of the costs regimes will be a welcome development for potential defendants in vexatious or ill-prepared criminal proceedings initiated by private prosecutors. Should a ruling in criminal proceedings be overturned at judicial review, a defendant can now seek their costs back from the complainant for both the judicial review itself in addition to the criminal proceedings.
This judgment is one of a number of recent clarifications being made to the current private prosecution regime. R v BDI5 highlights that recovery of costs from central funds in criminal proceedings by a private prosecutor is not unconditional. Section 17 of the 1985 Act grants the court discretion to award fewer costs than requested where there are circumstances that make it inappropriate for the prosecution to recover the entire claimed amount. The Court of Appeal noted that relevant considerations include whether the prosecutor took reasonable steps to involve state prosecutors at the outset of the case, and whether the prosecutor acted reasonably in incurring expenses exceeding those the CPS would have. The court ultimately granted the private prosecutor costs equivalent to those that the CPS would have incurred. This ruling is an important reminder of the private prosecutor’s need for proportionality when conducting proceedings.
These cases come at a time when there are wider concerns about the use of private prosecutions for improper purposes. A recent consultation process held by the Ministry of Justice further seeks to reform the practice of private prosecutions, proposing new measures such as a binding code of conduct (the current Code for Private Prosecutors is a guide and not mandatory); an inspection and accreditation regime, and sanctions for breach of standards.
1 R (On the Application Of) v Highbury Corner Magistrates' Court [2025] EWHC 2532 (Admin)
2 House of Commons Justice Committee, Private prosecutions: safeguards, Ninth Report of Session 2019–21, pg 15
3 Ministry of Justice, Equality Statement: Consultation on the oversight and regulation of private prosecutors in the criminal justice system, pg 3
4 Murphy v Media Protection Services [2013] 1 Costs LR 16
5 R v BDI [2025] EWCA Crim 1289
