Regina (Macmillan Cancer Support) v Toogood

On an appeal from a determining officer’s assessment of costs awarded to a private prosecutor under section 17 of the Prosecution of Offences Act 1985, all costs within the award, including witness expenses, fall to be assessed by the appropriate authority under the Costs in Criminal Cases (General) Regulations 1986.

There is no separate or enhanced assessment regime for charitable private prosecutors. Their recoverable costs are assessed by reference to objectively reasonable privately funded criminal work, while the regulatory requirement that doubts be resolved against the applicant remains applicable. Reasonable attendance by more than one representative may be recoverable where their functions differ and the circumstances justify it. Counsel’s fees are assessed globally and are not calculated simply by applying an hourly rate; reasonable travel time may inform the overall assessment.

Macmillan Cancer Support privately prosecuted the defendant for theft and fraud. Following conviction and sentence, the Crown Court made an order under section 17 of the Prosecution of Offences Act 1985 for the prosecutor’s costs to be paid from central funds.

The Legal Aid Agency’s determining officer assessed the costs. The appeal concerned three issues: whether the prosecutor’s internal investigators’ witness expenses were to be assessed by the Crown Court or the determining officer; whether the attendance of a second investigator on the first day of trial was reasonably incurred; and whether counsel’s fees had been assessed too restrictively.

1. Witness expenses. The determining officer’s jurisdiction under regulation 5 of the Costs in Criminal Cases (General) Regulations 1986 extends to all costs awarded under section 17, including witness expenses. Part V of the Regulations does not create a separate assessment and payment mechanism. A purposeful reading of the Regulations favours a single assessment by the appropriate authority. Paragraphs 1.4.1 and 2.6.3 of the Practice Direction (Costs in Criminal Proceedings) 2015 reinforce that conclusion.
2. The expenses of both investigators were reasonably incurred. The second investigator’s attendance was not a luxury. The paralegal and investigator had different functions, and the first day of trial carried a foreseeable risk of developments requiring an immediate response. The claimed attendance costs were therefore recoverable under Part V of the 1986 Regulations.
3. Assessment regime. The importance of charitable private prosecutions may be taken into account under the relevant guidance and rule 45.2(7) of the Criminal Procedure Rules. It does not create a special regime. Regulation 7, including the rule that doubts are resolved against the applicant, continues to apply. However, the policy of not capping private prosecutors’ costs indicates that reasonable recovery is measured by what it is reasonable to charge for privately funded criminal work, rather than by legal-aid rates.
4. Counsel’s fees. The assessment is not an arithmetical exercise based solely on hours multiplied by an hourly rate. The assessor must determine reasonable remuneration for the work, including the responsibility undertaken by counsel. Reasonable travel time may be considered as part of the overall reasonableness of a brief fee. The reasoning in R v Evans & Ors was applied in that respect, while R v Slessor did not establish a binding rule requiring travel time to be ignored.
5. The appeal succeeded. The investigators’ witness expenses and the second investigator’s first-day attendance were allowed. Counsel’s fees were allowed as claimed, except that the earlier counsel’s preparation fees were allowed at £950 plus VAT. The appropriate additional payment was to include £4,700 exclusive of VAT for costs and £100 paid on the appeal.

The appeal was brought under regulation 10 of the Costs in Criminal Cases (General) Regulations 1986 against the Legal Aid Agency determining officer’s assessment of costs awarded by the Crown Court under section 17 of the Prosecution of Offences Act 1985. The High Court (Senior Court Costs Office) allowed the appeal for the reasons given in the judgment.