The following general principles are applicable:
- The purpose of a costs order is to compensate the prosecutor for their reasonably incurred (legal) costs.
- 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.
- Such an award is discretionary and the award of costs should be “just and reasonable”.
- An application for costs against a defendant can include investigators’ costs / costs of the investigation. 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.
Reference should be made to Part 45 of the Criminal Procedure Rules and the associated Practice Direction.
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 enable the defendant and 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.
The private prosecutor must be made aware that, 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.
Where there has been misconduct on the part of the prosecution, a private prosecutor should not be awarded costs out of Central Funds.18
The private prosecutor must be advised that there is a power to award costs against a private prosecutor and/or legal representatives, “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”.19 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.20
19 Section 19 of the Prosecution of Offences Act 1985.
20 R (on the application of Aisling Hubert) v Manchester Crown Court v Dr Prabha Sivaraman  EWHC 3734.