CODE FOR PRIVATE PROSECUTORS

11.

Costs

11.1

Principles and general advice

11.1.1

The following general principles are applicable:

1. The purpose of a costs order in favour of the prosecution is to compensate the prosecutor for their reasonably incurred costs.
2. A successful private prosecutor should, in the first instance, consider making an application against the defendant, before it considers an application for costs out of central funds.
3. Such an award is discretionary and the award of costs should be “just and reasonable”.
4. An application for costs against a defendant can include investigators’ costs / costs of the investigation, although it will not be just or reasonable to order a defendant to pay the costs of an investigation which the prosecutor itself will not satisfy.
5. Whilst the Criminal Cases Unit of the Legal Aid Authority has issued guidance which excludes investigation costs from a prosecutor’s recovery of costs from central funds, the Divisional Court has declined to treat the commencement of a prosecution as a bright line, before which no items of expenditure may be recovered from central funds. Thus, even if incurred before the issue of a summons or the laying of an information, steps may properly be regarded as having been taken ‘in the proceedings’ for the purposes of s.17(1)²⁵.

11.1.2

Reference should be made to Part 45 of the Criminal Procedure Rules (as amended) and the associated Practice Direction.

11.2

Prosecution costs

11.2.1

The current position is that legal costs can often be recovered by a private prosecutor, either from central funds pursuant to section 17 of the Prosecution of Offences Act 1985 (whether or not the defendant is convicted) or from a convicted defendant, where he has the ability to pay.

11.2.2

Wherever possible the primary application for a prosecutor’s costs should be made against the convicted defendant(s). The defendant should be provided with sufficient information in relation to the costs sought to give the defendant a proper opportunity to make representations upon them and to allow the Court to consider whether those costs are “just and reasonable”. If an application is made against a defendant, he or she must be afforded the opportunity to comment on the costs sought prior to the order being made.

11.2.3

In respect of applications from central funds, the general rule is that the court should make a prosecutor’s costs order save where there is a good reason for not doing so, for example, where proceedings have been instituted or continued without good cause. At present the costs of a private prosecution, whether successful or unsuccessful, are usually recoverable, in part, from public funds. Private Prosecutors will need to have due regard to any relevant authorities in this area, and in particular where the Court has given guidance on the approach to be taken to s.17 applications for costs from central funds²⁶.

11.2.4

Part 45 of the Criminal Procedure Rules identifies the material which a private prosecutor is required to supply in support of such an application:

1. a summary of the items of work to date done by a solicitor;
2. a statement of the dates on which items of work were done, the time taken and the sums claimed;
3. details of any disbursements claimed, the circumstances in which they were incurred and the amounts claimed in respect of them, and
4. such further particulars, information and documents as the court may require.

11.2.5

The court may decline to make an order if the applicant fails to provide enough information for the court to decide whether to make an order at all and, if so, whether it should be for the full amount recoverable or for a lesser sum

11.2.6

Before embarking on a prosecution, a private prosecutor should be advised that the funding arrangements may be revised adversely during the lifespan of the case. The House of Commons’ Justice Select Committee has recently recommended that the Government urgently review the funding arrangements for private prosecutions and it has also endorsed a proposal that private prosecutors’ recoverable costs should be capped at legal aid rates, which are low. The private prosecutor should therefore be advised about these proposals and their potential effect on the recoverability of prosecution costs

11.2.7

Where there has been misconduct on the part of the prosecution, a private prosecutor should not be awarded costs out of central funds.²⁷

11.2.8

The private prosecutor must be made aware that, particularly in a substantial case, the Court may consider what efforts have been made by the private prosecutor to examine competition in the market, test it and seek tenders or quotations before selecting the solicitor and advocate instructed when determining the amount of costs that might be payable. A Court will consider what is reasonable in the circumstances of a case. Issues surrounding the quantum of costs payable to private prosecutors were considered in Fuseon Ltd. v Senior Courts Costs Office [2020] 2 Cr App R 2 (12).

11.2.9

The right of private persons to bring a prosecution is an important constitutional principle and the Regulations should be interpreted accordingly.

11.3

Defence costs

11.3.1

The private prosecutor must be advised that there is a power to award costs against a private prosecutor, “where the Court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings”.²⁸ In proceedings where, on proper analysis, the prosecution never had any prospect of success and thus should never have been brought, a private prosecutor should expect to have to bear the costs of the defendant.²⁹