The recovery of costs incurred by private prosecutors from central funds is permitted under section 17 of the Prosecution of Offences Act 1985 (‘the Act’) for proceedings in respect of indictable offences (or certain either way or summary matters) and for any period when the case was not prosecuted by the Crown Prosecution Service.
Section 17 should be read in conjunction with Part 45 of the Criminal Procedure Rules 2020 . In summary:
Private prosecutors are not expected to have to cover the costs of bringing a prosecution and the default position is that recovery from central funds for reasonably incurred costs will be permitted.
Private prosecutors may face a significant outlay of funds prior to commencing proceedings. The preparation of witness statements and exhibits within a process consistent with disclosure and other obligations often results in considerable expense, particularly in cases relating to financial wrongdoing.
The decisions in Football Association Premier League and another v Lord Chancellor [2021] EWHC 755 (QB) and Mirchandani v Lord Chancellor [2021] 1 Cr App R 7 have provided welcome news to private prosecutors in relation to some of the typical costs incurred during private prosecutions.
In FA v Lord Chancellor, the Appellant, who had successfully prosecuted a number of individuals, sought to recover costs under section 17. An assessment of the costs sought was made by the Legal Aid Authority’s (‘the LAA’) Determining Officer (‘the DO’) who determined that no costs should be recovered in relation to work undertaken prior to the commencement of proceedings. This decision was appealed to a costs judge who upheld the decision but certified a point of law for consideration: what approach should a court take when asked to permit the recovery of pre-commencement expenses. The Divisional Court held that the words “incurred in proceedings” do not create a cut-off date prior to the commencement of proceedings and that just and reasonable costs incurred by private prosecutors prior to the commencement of proceedings were recoverable under section 17.
This clarification as regards pre-commencement costs has been echoed when considering costs incurred in respect of enforcement proceedings post-conviction. In Mirchandani v Lord Chancellor, the court found that a private prosecutor could seek the appointment of a receiver in respect of a convicted defendant’s assets, but that recovery from central funds was unavailable on the basis that enforcement proceedings were civil, rather than criminal, and therefore fell outside the remit of section 17. This decision was overturned, and the Court of Appeal confirmed that confiscation proceedings are part of the sentencing process, and that costs are recoverable for enforcement proceedings.
The extent to which either of those authorities will be followed remains to be seen but two recently reported decisions from the Senior Courts Costs Office are instructive of the ongoing attitude of the LAA to applications for costs by a private prosecutor. Fortunately, however, the court has provided clarification of the proper approach to orders for prosecutor’s costs from central funds under section 17 of the Act.
Das UK Holdings Ltd v Asplin and others [2022] EWHC 2214 (SCCO)
This case concerned disbursements in a large private prosecution brought against six defendants for conspiracy to defraud in 2018. The LAA described it as “the largest sum ever claimed in a private prosecution”. Disbursements totalling a little short of £5 million on counsel, PwC, EY and Slaughter & May were reduced to under £1 million by the LAA’s Determining Officer (‘the DO’).
In short, the court allowed the vast majority of the fees claimed by the appellant and reversed the very substantial reductions made the DO. The court was called upon to resolve a number of disputes that are of interest for future cases:
R (Khassenov) v Kulich [2022] EWHC 2845 (SCCO)
This case concerned costs incurred in POCA proceedings following conviction, which were reduced by almost half by the DO from £209,197.51 to £122,896.21.
The main issue concerned a Singh discount (see (iii) above) applied to the solicitors’ fees which were said to be disproportionately high. The LAA pointed out that there was a theme of decisions against the same solicitors where their costs had variously been described as “eye-watering” and “quite extraordinary” and reduced accordingly.
The LAA also gave multiple examples of discrepancies between the costs schedules and attendance notes provided. There were relatively few contemporaneous attendance notes, and, where they were provided, they were often for substantially lower times than the work logs.
On the other hand, the Appellant argued that the Singh discount had been incorrectly applied. The DO had undertaken a line by line determination of the bill (‘the audit phase’), and then stood back and applied a Singh discount, reducing the 734.3 hours to 300. The Appellant pointed out, and the court agreed, that it was not clear from the DO’s determination what the figures after the audit phase had been (the decision only referred to the audit phase having been undertaken, not its result), and so it was unclear what the Singh discount actually was.
The Court agreed that the LAA had fallen into error. First, before applying the Singh discount, the LAA was required to come to a total figure after the audit phase, to which a further discount could be applied if appropriate. The LAA had failed to do so.
Second, the LAA had failed to undertake a categorisation exercise, to ensure that the Singh discount was applied in a comprehensible manner. The Singh discount can be applied to each category (e.g. “work on skeleton arguments”, or “undertaking disclosure”) but not to the solicitor’s costs as a whole.
The decision was remitted to the LAA to undertake the Singh exercise correctly. The court ruled it was impossible to tell whether the Appellant’s other complaints (an unfavourable comparison with another POCA case, and disallowed work in certain categories), were made out until the Singh exercise had been properly undertaken.
Lessons learned
There will no doubt be many readers of this article who have extensive experience in private prosecutions and applications under section 17, but to whom Singh discounts and the like will be less familiar. Putting some of the detail of the above decisions aside, it is suggested the following can be gleaned:
Oliver Glasgow KC and Lewis MacDonald
SUMMARY In 2017 a 24-year-old woman, Louella Fletcher Michie, died at the Bestival Music Festival,…
Camilla Fayed was declared not guilty of robbery after the prosecution offered no evidence. Camilla…