Herbert Smith Freehills Kramer secures a landmark ruling on costs: private prosecutor ordered to pay costs of "vexatious" prosecution

Herbert Smith Freehills Kramer has secured a landmark costs ruling in favour of Mr Antony Bates, former Chief Financial Officer of Yell Group plc (later hibu plc), following the High Court’s decision earlier this year to quash a private prosecution brought by a former shareholder of the company in August 2024. In a judgment dated 6 October 2025, the Divisional Court conclusively resolved proceedings in Mr Bates' favour, overturning a decade-old legal principle on costs. The Court ordered the private prosecutor to pay Mr Bates' costs of both the judicial review, as well as the underlying criminal proceedings. 
 
On 31 January 2025, following an application for judicial review, the High Court (Yip J as she then was) found the Magistrates' Court decision to issue the summons and transfer the proceedings to the Crown Court to be unlawful, and the prosecution to be “misconceived, vexatious and abusive” (see here for our post on the substantive judgment). The Court was accordingly invited to determine Mr Bates' entitlement to costs in the judicial review and in the Magistrates’ Court proceedings.
 
Sitting as a Divisional Court of the King’s Bench Division on 2 July 2025, Whipple LJ and Yip LJ (sitting as Yip J on the date of the hearing) held that the High Court’s general power to award inter partes costs under section 51 of the Senior Courts Act 1981 applies in judicial review proceedings deriving from criminal matters, guided by CPR Part 44 and the general rule that costs follow the event. In doing so, the Court rejected the principle that such costs are only available in “exceptional” cases, and decided that the long-standing authority of Murphy v Media Protection Services was "wrong" and “should not be followed”. 
 
Accordingly, the Court ordered the private prosecutor to pay Mr Bates’ costs of (1) the judicial review; and (2) the Magistrates’ Court proceedings on the basis that his conduct in pursuing the private prosecution was "unnecessary" and "improper"  (per section 19 of the Prosecution of Offences Act 1985).
 
Mr Bates' costs in the Magistrates' Court and judicial review proceedings are in excess of £500,000. In light of the Court's orders as to costs and the finding that the prosecution was "misconceived, vexatious and abusive", Mr Bates now intends to pursue his entitlement to recover his costs from the private prosecutor to the fullest possible extent.
 
HSF Kramer represented Mr Bates in this case, alongside counsel Adrian Darbishire KC (QEB Hollis Whiteman), and Stuart Biggs KC (Cloth Fair Chambers). The High Court invited the Attorney General to appoint an Advocate to the Court; Paul Jarvis KC appeared in that role. The defendant (Highbury Corner Magistrates' Court) took no active part in the proceedings.