Private prosecution guidance

Notes following BDI and Taktouk

The CCU takes particular note of the following principles that have emerged from these judgments, and may rely on them where it seems appropriate to focus on the following point.

In both judgements, the court noted that it was a reasonable assumption that a state prosecuted case was less of a burden on the public purse than a privately prosecuted one, and that high sums paid out from Central Funds as a result of private prosecution costs orders would have a diminishing impact on valuable public resources which could otherwise be spent elsewhere. This is referenced in BDI at paragraph 83.

In deciding whether there is good reason for an order under s17(2A), it will always be important, and in some cases decisively so, for the court to know whether the state prosecuting authorities were given a reasonable opportunity to make an informed decision as to whether they could undertake the prosecution and, if so, whether they wished to do so…..the extent to which a private prosecutor may recover compensation for his expenses from the public purse may be reduced if he has chosen to pursue the case without reference to the state authorities.

The CCU may rely on these elements of the judgements to seek confirmation from the prosecutor that such efforts were made, and if not, why not. They may seek supporting evidence from any costs application or skeleton argument provided to the court, and/or any record of the court hearing.

It may be appropriate to make an assessment taking into account state agency rates or make a more general reduction unless there is good reason not to do so.

Both judgements make clear that communication with state agencies may be expected to take place prior to proceedings, during the investigation stage, and Taktouk makes clear that it may be appropriate to contact state agencies should the matter proceed from a substantive case to confiscation proceedings. Paragraph 31 of Taktouk highlights that all costs application should include, amongst other things, the steps taken by the prosecutor to engage the police and state prosecutors in bringing the case.

And paragraph 40 sets out

After conviction, we consider that there would be a further obligation to determine whether the Crown Prosecution Service was willing to conduct the confiscation proceedings.

Where it is asserted that there is no basis for limiting costs to CPS or other state agency rates, assessors will expect to see evidence of market tendering. This is referenced at paragraph 85 of BDI In our view, the reasonableness of the choice of legal representatives does involve consideration of their charges by comparison with others working in the same market.

Whilst it may have been the case in matters carried out some years ago, that private prosecutions were carried out by a relatively small number of firms, often specialist and London based, the CCU will take note of the comment in BDI at paragraph 88

We note that 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. We accept that, in some highly specialised areas of the law, that may be so. In our view, however, clear evidence will be needed before a court would decide that the choice was limited in that way, and that the public purse must accordingly bear a substantial cost. We observe, for example, that 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 such expertise can be found both in London and in other cities.

The CCU may apply this principle to assess that where a case takes place outside London there may well be local firms with the skill and capability to carry out such prosecutions, and lower regional rates may be the appropriate rates for assessment.

It was also noted that while costs would not be the sole determining factor in determining reasonableness of instruction, it would always be something to take into account.

It will be expected that full information will have been provided to the court in advance of any order made, in line with observations in these judgements. Paragraph 29 of Taktouk notes that It is of considerable importance that applications for orders from central funds under section 17(1) of the Prosecution of Offences act 1985 comply with the Crim PR and the requirements explained in the authorities, now gathered in BDI. They are effectively made ex parte since the Lord Chancellor does not see them, and the defendant to the criminal proceedings is not interested…Any person making an ex parte application for public funds has an obligation to be candid with the court and to supply it with the information necessary to make the appropriate order.

The CCU would hope that any court making an order would have taken the above factors into account, ensured that they were provided with full, appropriate and detailed information to accompany any costs application and included any comments or directions that may give assessors further guidance. In the absence of either, assessors are likely to explore how the above principles best apply. A copy of the costs application and any associated appendices should be provided with the PP1 claim form.

Claims must be submitted on the latest version of the PP1 form, this must be downloaded from Apply for criminal court costs from central funds (form PP1) – GOV.UK each time you a submit a claim.

In order to ensure your claim can be processed swiftly and to minimise the need for further information or for the assessor to disallow work they are unable to validate by reference to supporting documentation we would request that:

All attendance notes to be provided. Attendance notes must be dated. Please arrange attendance notes in chronological order. Where using secure file exchange please put attendance notes in a separate folder.
Items claimed as correspondence must be provided. Please arrange correspondence in chronological order and submit separately from attendance notes. Where using secure file exchange please put routine correspondence in a separate folder. Where items are claimed as routine correspondence these should be filed separately.
Please provide any correspondence with the police or state prosecution agencies. Please provide all evidence of any tendering activity so the assessor can take this into account when making a determination. Where using secure file exchange please put this in a separate, labelled folder.
When naming files please note there is a character limitation on secure file exchange. Keeping file names concise will mean the LAA do not need to reformat which will speed up the processing of your claim. For example, when saving email correspondence characters such as ‘fwd, fwd, fwd’ can be deleted to reduce the file path length.