Murphy, R (On the Application Of) v Media Protection Services Ltd

LORD JUSTICE BEAN: This litigation has been going on for over ten years. Mrs Murphy operated the Red White & Blue public house in Portsmouth and on 24 January 2007 was convicted at the Portsmouth Magistrates' Court of two charges of contravening section 297 of the Copyright, Designs and Patents Act 1988 by receiving and showing in the pub Premier League football matches using a satellite decoder card imported from Greece which gave access to broadcasts by a Greek broadcaster called Nova.

The prosecution was a private one brought by a company called Media Protection Services Limited who acted on behalf of and as the creature of The Football Association Premier League Limited, better known as the Premier League, one of the wealthiest organisations in the country. The Premier League prosecuted a number of publicans using decoder cards imported from outside the UK to show Premier League football matches and also brought civil claims in the Chancery Division against the businesses who were importing the decoder cards into the UK and supplying them to pubs, as well as against certain publicans.

The prosecutions and the civil claims raised complex issues of European law. On 24 June 2008 Kitchin J referred a number of questions to the Court of Justice of the European Union, as did this court composed of Stanley Burnton LJ and Barling J, in the criminal proceedings.

On 4 October 2011 the Grand Chamber of the CJEU issued its judgment answering the questions referred by both the civil and criminal courts of this jurisdiction. On 24 February 2012, Stanley Burnton LJ and Barling J applied the answers given by the Luxembourg court to Mrs Murphy's appeal and quashed her convictions.

A fortnight later, on 8 March 2012, this court went on to consider the order for costs. They decided that an order should be made under the civil costs regime in view of the unusual nature of the case as being effectively commercial litigation designed to protect the Premier League's commercial interests. The order was made against Media Protection Services Limited. The obvious alternative would have been an application for an order for costs from central funds.

Since 2012 Media Protection Services Limited have ceased operations and are now in liquidation, or at any rate without any funds. The Premier League, it seems, have quite deliberately not indemnified those who have obtained orders for costs against Media Protection Services Limited. Moreover, the Court of Appeal (Civil Division), in the case of Darroch v Football Association Premier League Limited, [2017] 4 WLR 6, has expressed the view that this court - the Divisional Court - has no power to make a costs order on a civil basis in a criminal case, as this court did in Mrs Murphy's criminal appeal in 2012 (see paragraph 25 of the judgment given by Burnett LJ).

In the light of these developments, Mr Martin Howe QC for Mrs Murphy is clearly right to contend that there is no prospect of Mrs Murphy being able to recover her costs under the order made by this court against MPS, and that there is no realistic prospect of obtaining a non-party costs order against the Premier League itself. At the very least, an attempt to apply for such a non-party costs order against the Premier League with all its immense resources would involve Mrs Murphy in an enormous costs risk to which, as it seems to us, she should simply not be exposed.

Despite the unusual facts of this case and the very protracted history involving the reference to Luxembourg, Mrs Murphy is in the end a defendant in a criminal case who has ultimately been exonerated, who has not misbehaved in any way in the course of the court proceedings and who is entitled to her costs from central funds pursuant to section 16 of the Prosecution of Offences Act 1985, and we will make that order in the terms drafted by Mr Howe.

It is apparently not the usual practice for notice to be given to the Ministry of Justice of applications for costs from central funds, and no such notice has been given in this case. We will add a proviso to the order we make, which is that it shall not become final until notice of it has been served on the Ministry of Justice and 21 days have elapsed from such service without the Ministry applying to this court to vary the order or, if such application is made by the Ministry, until further order of this court. As we have said in the course of argument we are not in the least encouraging such an application to be made; we are simply providing the opportunity for it if the Ministry (who have not been represented here today) are advised that there is some prospect of benefit to them by making such an application.

MRS JUSTICE MCGOWAN: I agree.