s.17 COSTS and CHOICE of REPRESENTATION

In Rex v BDI & others [2025] EWCA Crim 1289 the Court of Appeal, following a lengthy review of a long line of authorities ruled that a private prosecutor seeking to recover his costs from central funds pursuant to s.17 of the Prosecution of Offences Act 1985 was entitled to recover a “sum reasonably sufficient to compensate them for the expenses properly incurred [but that the sum should not] exceed the expenses which would have been incurred if the prosecution had been undertaken by the CPS”.

Adopting the observations of Lord Thomas CJ in R (Virgin Media Ltd) v Zinga [2014] EWCA Crim 1823, the court posed rhetorically that “If the appropriate state authority was able and willing to undertake a particular prosecution or would have been…an obvious question arises as to whether the cost to the public purse should be increased by a private prosecutor choosing to pursue his own course.”  Adding that if the private prosecutor did not take steps “to involve the state prosecuting authorities and to test the market for appropriate legal representation…he puts himself at risk that the application will be refused, or that any award will be reduced” to CPS rates.

Addressing the issue of choice of representation, the court observed that “the reasonableness of the choice of legal representatives does involve consideration of their charges.”  Before adding “in some of the cases cited to us, the view was taken that only a very limited number of solicitors and counsel would be competent to conduct the private prosecution, and that charging rates would differ little within that small group…in some highly specialised areas of the law, that may be so…however, clear evidence will be needed before a court would decide that the choice was limited in that way,…in fraud cases there are a significant number of expert counsel with experience of prosecuting; there are a significant number of large solicitors’ firms whose expertise in defending such cases could be deployed on the prosecution side.”

And, of course, coming down the track is Clause 10 of the Victims and Courts Bill where the government plainly has in mind achieving parity between a private prosecutor’s costs order and that which the defence can recover, namely legal aid rates.