Trends in Recovering Costs in Private Prosecutions: Two Steps Backwards, One Step Forward?

In a judgement released on 19 November 2025 – Elie Taktouk v The King (Benherst Finance Limited and Chestone Industry Holding) [2025] EWCA Crim 1473 – the Court of Appeal[1] has confirmed and further expanded upon the principles set out in R v BDI & Ors [2025] EWCA Crim 1289.

BDI was a costs decision earlier this year where a private prosecutor was penalised in respect of their application for costs from central funds due to the cost of their choice of legal representation. The costs allowed were reduced to the rates the CPS would have charged due to a failure on the part of the private prosecutor to  make sufficient efforts to allow a public prosecuting body to take over the prosecution and to not ‘tender’ for their legal representatives to ensure they obtained representation at the cheapest rates available. The decision in BDI has been covered in an earlier article, here.

In Taktouk the Court of Appeal reiterated the principles from BDI, noting that they were in fact not ‘new’ points but that they have existed from the time of the well-known case of ‘Zinga’ (R (Virgin Media Ltd) v Zinga [2014] EWCA Crim 1823).

The Court held that the following factors will be relevant to the court’s decision as to whether to award a private prosecutor costs out of central funds under section 17 of The Prosecution of Offences Act 1985:

1. Whether proper efforts have been made to give public prosecuting authorities (the CPS or the SFO) the chance to take over conduct of the prosecution. This duty exists at each stage of the case: the investigation, the time when there is a case to be prosecuted, and even after conviction before confiscation proceedings are initiated [¶40].
2. Whether a ‘tender’ has been made to the legal market to find the most competitive rates for lawyers, conducting what is known in the industry as a ‘beauty parade’.

The Court also made clear the importance of compliance with the Criminal Procedure Rules in making an application for costs. The application must be compliant with CrimPR 45.4, which sets out the detail required in such an application. Importantly, at paragraph 6(c) it says this: “the court may decline to make an order if the applicant fails to provide enough information for the court to decide whether to make an order at all and, if so, whether it should be for the full amount recoverable or for a lesser sum.” The Court of Appeal in Taktouk gave a salutary warning at [¶31] that, in respect of deficient applications which require more court time to deal with, that “prosecutors should be aware that CrimPR Part 45.4(6)(c) will be applied to reject the claim or allow it in a reduced sum.”

As to what to put in the application for costs, the Court noted the following features that are required to make the application compliant with Part 45.4:

• Details of the steps taken by the prosecutor to engage the police and state prosecutors in bringing the case.
• The way in which the fees of the solicitors and counsel have been calculated including any tendering process for alternative providers.
• The information in CrimPR 45.4(5) (which is: a summary of the items of work to date done by a solicitor; a statement of the dates on which items of work were done, the time taken and the sums claimed; details of any disbursements claimed, the circumstances in which they were incurred and the amounts claimed in respect of them; and such further particulars, information and documents as the court may require). Particular emphasis was put on the dates work was done and by who in [¶31]
• Where previous costs orders have been sought or made in the same proceedings, details should be given of what orders were made, when, and in respect of what work. [¶32]
• The bill should be broken down into investigative work, prosecution work, and what work was done and by whom in the solicitors firm. [¶33]

The Court reiterated that any misstatement of the legal position on costs, or any error that may require further work by the Court, will result in a costs penalty [¶34].

The facts of the case concern a successful ‘fresh evidence’ appeal by the convicted defendant (following a private prosecution) against a confiscation order made against him. The private prosecutor had failed to disclose important material concerning the appellant’s wealth during his confiscation proceedings. The private prosecutor claimed the costs of resisting the appeal out of central funds under section 17(1) of the Prosecution of Offences Act 1985. The application for costs initially submitted was sparse (costs schedule set out at ¶9 in the judgement) and involved a misstatement of the law in respect of claiming costs. This resulted in an initial refusal to make the order, directions for representations from the Lord Chancellor, back and forth between the parties and the Court to receive further evidence, and a full hearing in front of the Court of Appeal. Of note, the prosecutor had previously made four successful applications for prosecution costs to the tune of £3,847,285.38.

The Court noted that it would be open to it to decline to make a costs order at all given the “serious failure” in presenting the application for costs. However, what was described as “a more generous approach” [¶49] was taken because “this judgement, and BDI, will, we hope, explain to the profession how the courts will approach these issues. Future non-compliance with CrimPR 45.4(6)(c) may well result in the court simply declining to make any order, and not expending any further public and judicial resources on prosecutors who cannot manage to present a bill of costs properly”. The Court therefore decided to make an order under section 17 for a payment to the prosecutor for costs out of central funds, but the sum was to be reduced by 50% because of the following factors [set out at ¶52]:

1. The failure to lodge an adequate claim for costs and to accurately state the law within it. This includes the failure to communicate with state prosecuting authorities either when the prosecution begun or when confiscation proceedings were begun following conviction, and the failure to test the market at either of those points to establish the lowest amount the prosecutor could reasonably have been expected to spend in order to have its case conducted and presented proficiently (these factors are also repeated separately later).
2. A failure in disclosure in the confiscation proceedings, which is cited as a “significant factor”.
3. Failure to communicate with the state prosecuting authorities when the prosecution began or when the confiscation proceedings began.
4. The failure to test the market at the point when confiscation proceedings commenced to establish the lowest amount the prosecutor could reasonably have been expected to spend.

The Court specifically noted that the failure to refer the case to the CPS was only one factor in its decision on costs, and that the disclosure failings resulting in the fresh evidence appeal were a significant factor. Therefore, the 50% reduction in costs is not likely to be any benchmark for private prosecutors who have not sought to test the market for their legal representation or who have not sought to ask the CPS to take over the prosecution.

The Court made an interesting observation in respect of why a percentage discount was applied rather than capping the rates at CPS rates stating: “we see some force in the prosecutor’s submission that it may not be possible easily to identify such a rate. It will be impossible in respect of investigative work which the CPS does not do, difficult in the cases of work done by CPS lawyers and paralegals, and rather more straightforward in assessing what counsel would have been paid”. It seems that costs may not therefore be ‘capped at CPS rates’ in cases moving forward, as was expected after BDI, due to the difficulty in calculating those rates. However, as we all know Clause 12 (formerly Clause 10) of the Victims and Courts Bill is currently making its way through the House of Lords which will allow the Lord Chancellor to make regulations capping costs that can be recovered by successful private prosecutors. We await to see precisely what those rates will be and how they impact decisions of the courts in awarding costs to private prosecutors.

The takeaways for practitioners from Taktouk are as follows:

1. If the CPS is not asked to take over the case at each significant stage of the proceedings (here, institution of proceedings after the investigation and at confiscation), costs repercussions can be expected.
2. If there is no ‘tender’ for legal representation, costs repercussions can be expected.
3. The Court will expect detailed applications for costs setting out all factors considered at paragraphs 31-33 and CrimPR 45.4; or else an application for costs might fail entirely or be reduced.

What is also clear is that practitioners can expect increased scrutiny as to applications for costs moving forward, not only on the bases set out above, but there may be an increased willingness of the courts to delve into whether the costs were properly incurred. The Court made an interesting observation at ¶50, which might be a sign of increased scrutiny to come, where it noted that: “The work of responding to an appeal based on fresh evidence should largely fall on counsel with the support of a paralegal to prepare and lodge bundles, and so on. Particular care is required to scrutinise the items of work for which a claim is made to ensure that they were (objectively) properly incurred.”

There is a significant trend towards limiting costs that can be claimed by private prosecutors from the public purse. However, in respect of costs obtained from another party to the proceedings, the scope for recovery of costs has recently been widened. The decision in R (Antony Bates) v Highbury Corner Magistrates’ Court [2025] EWHC 2532 (Admin) confirmed definitively that the High Court has the power under Section 51 of the Senior Courts Act 1981 to award inter partes costs in a judicial review arising from a criminal cause or matter, and that costs are not limited to the criminal costs regime in all but exceptional cases. Summonses against Mr Bates were quashed earlier this year, the Divisional Court finding that the applications by the private prosecutor, Mr Westhead, were vexatious and an abuse of the court’s process. The subsequent application for costs against Mr Westhead involved consideration of important costs principles where judicial review proceedings arise ‘from a criminal cause or matter’. The Court found that the line of case law stemming from Murphy v Media Protection Services [2012] EWHC 529 was wrong. Murphy had become authority for the proposition that costs in judicial review proceedings arising from a criminal cause or matter should follow the criminal costs regime (The Prosecution of Offences Act 1985) in all but ‘exceptional’ cases, meaning that inter partes costs were difficult to award in typical cases. The Divisional Court corrected this stance, confirming that that the High Court did have power to award inter partes costs in judicial review proceedings arising from a criminal cause or matter, at its discretion. Mr Westhead was ordered to pay Mr Bates his costs of the judicial review proceedings under the civil regime (costs follow the event).

This decision is important because it makes it easier for both defendants and private prosecutors to obtain inter partes costs in judicial review proceedings arising from private prosecutions, without the need to demonstrate impropriety on the part of the other party, as costs can simply ‘follow the event’ and be determined at the discretion of the High Court. This will come as both good and bad news to private prosecutors. The good news is that it will be easier to claim costs of a judicial review against a defendant or interested party. The bad news is that the private prosecutor themselves, as demonstrated in Bates, is also now at an increased risk of costs being awarded against them. Given the continuing limitation of costs that are able to be recovered from central funds for a private prosecutor, seeking inter partes costs in respect of any judicial review aspect of the proceedings might now be given more consideration as a means to recover costs.

[1] Edis LJ, Saini J and HHJ Leonard KC sitting as a Judge of the CACD