Background

In Taktouk v The King [2025] EWCA Crim 1473, the Court of Appeal (Criminal Division) delivered an important judgment on the recovery of costs by private prosecutors from central funds following a confiscation appeal. Although the underlying confiscation appeal had succeeded earlier in 2025, this decision concerned how, when, and to what extent private prosecutors may recover their costs under section 17 of the Prosecution of Offences Act 1985 (‘POA 1985’).

The proceedings arose out of a private prosecution for fraud. Following conviction, confiscation proceedings were pursued, resulting in a confiscation order. On 5 February 2025, the Court of Appeal allowed an appeal against the confiscation order on the basis of fresh evidence that may have undermined the trial court’s assessment of the available amount. The private prosecutors applied for an order that their costs of resisting the confiscation appeal, amounting to almost £200,000, be paid out of central funds under section 17(1) POA 1985.

Application for costs out of central funds

The private prosecutors’ application made no reference to any attempts made to ensure that the case was prosecuted by an appropriate state prosecutor. Furthermore, no information was given regarding how the private prosecutors were selected to conduct the prosecution, or whether there was any tendering process involving either them or counsel. The Memorandum of Costs lodged in support of the application merely provided a breakdown of the total profit costs, Counsel’s fees, and disbursements.

Upon receipt of the application, the Court gave directions giving the Lord Chancellor leave to intervene and to lodge written submissions. This resulted in further information about the costs incurred being provided by the private prosecutors, by way of a witness statement. The private prosecutors provided details of how they came to be instructed, they confirmed that there was no tendering process and stated that the chance of the CPS agreeing to prosecute was very slim. It was further confirmed that the CPS and police were not provided with the results of the private prosecutors’ investigation until after the appellant succeeded in his appeal.

Therefore, the key points to be determined were the consequences of:

• The private prosecutors’ failure to supply the information required by rule 45.4 of the Criminal Procedure Rules;
• The failure to attempt to involve the police and state prosecuting authorities in bringing the case; and
• The failure to engage in a tendering process for solicitors and counsel.

The Court noted that it was open to them to decline to make any costs order under section 17 because of the serious failure in presenting the claim. However, it instead ordered that the private prosecutors be allowed only 50% of the costs which the costs officer determined as reasonably sufficient. This reduction was to reflect:

• The failure to lodge an adequate claim for costs in compliance with CrimPR 45.4(6)(c), and to state the law accurately in it. The specific failures being:
• The failure to communicate with the state prosecuting authorities either at the point when the prosecution begun in 2018 or at the point when confiscation proceedings were begun following conviction with a view to them conducting the proceedings.
• The failure to test the market at either of the points identified at (a) above to establish the lowest amount which the prosecutor could reasonably have been expected to spend in order to have its case conducted and presented proficiently, having regard to all the relevant circumstances.
• The failure to disclose intelligence reports until the appeal proceedings were in progress.
• The failure to communicate with the state prosecuting authorities either at the point when the prosecution was begun in 2018 or at the point when confiscation proceedings were begun following conviction with a view to them conducting the proceedings.
• The failure to test the market at the point when confiscation proceedings were begun to establish the lowest amount which the prosecutor could reasonably have been expected to spend in order to have its case conducted and presented proficiently, having regard to all the relevant circumstances.

Whilst the Court did not exercise its discretion to disallow the private prosecutors costs, it did warn that the judgment in the present case and in BDI should serve as an explanation to how the Courts would approach the issue and future-non compliance with the requirements set out in the Criminal Procedure Rules may well result in the Court simply declining to make any order.

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

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

This question was dealt with by Senior Costs Judge Rowley in The Personal Representatives of the Estate of Maurice Hutson (deceased) & Ors v Tata Steel UK Ltd [2025] EWHC 1594 (SCCO).

The Paying Party challenged the recoverability of the costs of obtaining a Grant of Probate (hereafter “Grant”) within the Points of Dispute as follow:

“The Paying Party refers to the case of Mosson v Spousal (London) Ltd [2016] EWHC 54 (QB) (25 January 2016) and submits that the costs of obtaining a Grant of Probate are not recoverable on an inter partes basis.”

At the Detailed Assessment hearing, the Paying Party submitted that the case of Mosson was an authority for the proposition that the costs of obtaining probate cannot be recovered as damages in claims pursued under the Law Reform (Miscellaneous Provisions) Act 1934. The Receiving Party submitted that the fact that the costs of applying for probate could not be claimed as damages was both ‘incontrovertible and irrelevant’ where these fees have been claimed as items of costs. The Receiving Party invited the Judge to dismiss the point of dispute on the basis that the only argument, the reliance on Mosson, was one of no substance. Whilst the Judge did not disallow the point of dispute, he was clearly not entertained by the argument.

The Judge stated that the nub of the Paying Party’s challenge was the one regularly made by Defendants faced with claims for the costs of probate, namely: would these fees not be required anyway as part of dealing with the administration of the Deceased’s estate? If so, they should not be claimed as a cost of the litigation.

It was agreed between the parties that a Grant was required for a Claimant to pursue a claim under the Law Reform (Miscellaneous Provisions) Act 1934. It was further agreed that if the only reason for the Claimant to obtain the Grant was for this purpose, then the reasonable costs of doing so would be recoverable. If a grant was obtained to administer the estate, then no more than the costs of obtaining a copy could be claimed as a cost of the litigation.

The Paying Party’s case was then how the Claimant was to prove that the Grant was taken out simply for the litigation, and that the need for the Grant should be exclusive to that. The Paying Party went further to say that if the Judge had any doubt as to whether the Grant was obtained exclusively for the litigation, it should resolve the doubt in the Paying Party’s favour, since it was a standard basis assessment, and disallow the Grant costs claimed. The Receiving Party did not accept that the exclusive test was appropriate.

The Judge also did not accept the Paying Party’s approach as it was his view that this was not a situation where there was likely to be any doubt. He stated that:

“The question was really how much evidence was required to establish that the Claimant would not have sought a Grant if it were not to make a claim?”

In the present assessment, the solicitors for the Claimants had provided evidence about the size of the relevant estates, and why grants were not required to deal with items such as bank accounts, which would often be released without great formality.

The Judge recognised that there was a lack of any recent or easily accessible authorities on this point, so gave the following guidance:

“In my view, the bar for establishing that the Grant was obtained for the purposes of the litigation is not a particularly high one. If the personal representative or administrator attended Court on the assessment of their costs, it would require no more than their confirmation that the grant had been obtained for the litigation for the costs of so doing to be allowed in principle. Consequently, the witness evidence of the two solicitors in these cases which is both detailed and backed by supporting documents is more than sufficient in my judgment to establish these claims.”

In light of this judgment, practitioners would be well placed if they contemporaneously documented their file to reflect why a Grant would not have been required but for the litigation. This may be helpful in resolving challenges on the recoverability of these costs at an early stage, but if not, would be a helpful document to use as evidence in support, as the solicitors did in the Hutson case, if the costs were disputed and the matter proceeded to a detailed assessment.

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

The matter of XX (a protected party by her husband and litigation friend YY) and ZZ v (1) Jordan Young (2) Aviva Insurance Limited [2025] EWHC 680 (SCCO) concerned the assessment of the Second Claimant’s costs with regards to quantum only.

Costs Judge Nagalingam heard a 3-day detailed assessment hearing, following which he heard oral submissions, and then assessed elements of the bill whilst sitting in private. The Judge then produced a written judgment with the outcome of the assessment. The primary purpose of this approach was as a result of concerns to avoid a disproportionate approach to the assessment of time spent on documents.

The written judgment provides the Judge’s comments on several elements of the bill which are commonly challenged within Points of Dispute.

Internal Correspondence

93.25 hours was claimed within the bill of costs for internal communications, of which 34.35 hours was delegating work. The Judge disagreed with the Defendant’s argument that internal correspondence was irrecoverable in principle and stated that delegation cannot be achieved without some communication medium between the conducting fee earner and a junior. This was caveated as the Judge highlighted that where a senior fee earner has delegated tasks, ‘it must not lead to increased costs in monetary terms as compared with the senior fee earner undertaking the task personally’.

The Defendant’s secondary position was that the time claimed was excessive and the Court was asked to “allow a reasonable and proportionate amount to take into account the issues previously raised in respect of the Claimant’s conduct.” However, the Judge found that this was ‘far too broad an invitation’ and in light of the Defendant’s failure to identify which items they challenge, and how much they proposed be allowed, made no further reductions to this category of costs.

Document Time

Excluding the Costs Assessment phase, the total time spent on documents was 516.3 hours. This was split as 205.57 hours at grade A, 27.78 hours at grade B, and 282.95 hours at grade D. The Paying Party offered a total of 182 hours; split as 60 hours at grade A, 10 hours at grade B, 12 hours at grade C, and 100 hours at grade D. The Receiving Party made no concessions to the time in the Replies to the Points of Dispute. The Judge ultimately allowed 125 hours at grade A, 19.4 hours at grade B, and 150 hours at grade D.

The categories of challenges to the document time, and the Judge’s decision on the same, are set out below.

Delegation

As with internal correspondence, delegation was challenged in the document time. The Judge commented that whilst the delegation of tasks to lower grade fee earners was encouraged, it ‘should not be to the detriment of expediency and efficiency’ and delegation should be done ‘with care’.

Duplication

The Judge found that there were too many occasions where a grade D fee earner was ‘needlessly involved’ and that there was no justification for the conducting fee earner to be involved in the more basic aspects of running the case which grade D should have been deferred to.

Legal Research

The limited time claimed for legal research was disallowed on the basis that ‘one cannot hold themselves out as being specialist without utilising the benefit of gained knowledge when engaging experts and suitable counsel.’

Consent forms / forms of authority

The Judge rejected the argument that such forms were an administrative task or that the preparation of the forms should be subsumed into the costs of the outgoing correspondence sending the same.

Case / Action plan

The Defendant’s argument that the use of a case / action plan was irrecoverable in principle was rejected. However, the Judge did caveat that the use of such a document is only effective when it results in a time saving.

Sharelink, passwords and pagination

The Judge held that time spent on sharelinks, passwords, and pagination was purely administrative work and was disallowed.

Collation

Whilst the Judge found that collating documents was not purely administrative work, there was a distinction between the ‘important fee earner task of selecting documents for relevance and simply reproducing a list of documents upon direction from another.’

Incoming correspondence

The Judge held that perusal of incoming correspondence was unrecoverable inter partes.

Despite the arguments set out not being particularly novel, the judgment is a welcome refresher of the Court’s approach to a number of issues that are commonly disputed at detailed assessment. It is likely the decision will feature in sets of Points of Dispute and Replies across the country in the coming weeks and months, and is one that both paying and receiving parties should familiarise themselves with.

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