Background

In R v BDI & Ors [2025] EWCA Crim 1289, the private prosecutors applied for an order pursuant to section 17 of the Prosecution of Offenders Act 1985 that their costs of resisting the application for abuse of jurisdiction, and of the appeal of the same, be paid out of central funds. The Lord Chancellor was permitted to intervene in the application.

The private prosecutors alleged that they had suffered financial loss as a result of dishonest activity by the respondents which crossed national borders. They made their costs application in writing to the Registrar of Criminal Appeals in which they sought costs of £187,970.

Lord Chancellor’s Position

The Lord Chancellor submitted that the court should reduce the amount of the private prosecutor’s costs on the basis that there were serious deficiencies in the application for costs, and that the costs should be limited to those which would have been charged to the state if the CPS had conducted the prosecution. Alternatively, it was submitted that the costs of the solicitors’ work should be based on the guideline hourly rates and that counsel’s fees should only be allowed at a competitive market rate. Furthermore, the Lord Chancellor submitted that the private prosecutors failed to state in their application that they had taken no steps to involve the police and the CPS before commencing prosecution, and they failed to set out what steps they had taken to test the market before instructing their solicitors and counsel. Therefore, it was submitted that, in light of the failure to involve the police and ask the CPS to prosecute before issuing the summonses, the costs should be capped at CPS rates.

In summary, the Lord Chancellor’s core submission was that “the public purse should not have to pay increased costs when the private prosecutors took no steps to involve the state prosecuting authorities.”

Private Prosecutor’s Position

The private prosecutors denied that the application for costs was defective and submitted that there was no basis for the court to limit the costs to CPS rates. The private prosecutors referred to the correspondence with the CPS in which the CPS stated that the way in which the case had been handled to date demonstrated that the international reach of the solicitors could have benefits to a prosecution which a public prosecutor would find hard to match. Furthermore, the CPS had been offered the opportunity to take over the prosecution and declined to do so.

Judge’s Determination

Having considered the submissions of both parties, the Judge confirmed that its view was that:

“Any private prosecutor who fails to take appropriate steps or fails sufficiently to inform the court about them in his application for an order… puts himself at risk that the application will be refused, or that any award will be reduced… to the level of costs which would have been incurred if the state authorities had prosecuted the case.”

The Judge considered that it would always be important for the court to know whether the state prosecuting authorities were given a reasonable opportunity to make an informed decision as to whether they should undertake the prosecution. On this point, the Judge held that there were two points to consider. The first being that CPS rates may properly be considered if a private prosecutor acted without regard to whether the state was willing and able to prosecute (citing Fuseon Ltd v Senior Courts Costs Office [2019] EWHC 126 (Admin), [2020] Costs LR 251). The second point being that even if it was reasonable for the private prosecutor to undertake the prosecution, it may still be relevant to consider what expenses would have been incurred if the case had been conducted by the state prosecuting authority.

In analysing the facts and circumstances of the present case, the Judge made note that the private prosecutors did not inform the police or invite the CPS to consider the evidence relied upon until directed to do so by the District Judge who issued the summonses. By this point, significant work had been undertaken. Furthermore, within the letter to the CPS the private prosecutors expressed that they did not wish for the CPS to take over conduct of the proceedings. Whilst the private prosecutors were entitled to take the approach that they did, they thereby put themselves at risk in relation to recovering their costs from the public purse.

It was accepted by the Judge that the case was a complex one and had been well conducted by the private prosecutors. However, the Judge determined that the fundamental difficulty the private prosecutors faced was that they had failed to show that the police and the CPS, if given an appropriate opportunity at an appropriate stage, could not or would not have undertaken the prosecution. Therefore, they failed to show that they had acted reasonably in incurring expenses in excess of those which would have been incurred by the CPS. On that basis, the Judge was satisfied that there were circumstances which made it inappropriate for the private prosecutors to recover the full amount of costs which would otherwise have been awarded.

The Judge, therefore, ordered that the private prosecutors be paid out of central funds but be limited to the expenses which would have been incurred if the prosecution had been undertaken by the CPS.

Ellena Hunter is an Associate in Clarion’s Costs and Litigation Funding Team and can be contacted on 07979 199145 or Ellena.hunter@clarionsolicitors.com