R v Magon

On an appeal concerning compensation for a private prosecutor’s costs, the assessment must allow work and disbursements that were actually and reasonably undertaken or incurred, having regard to all relevant circumstances.

Where counsel conducts both litigation and advocacy, the work should be assessed under both aspects. Direct access does not inevitably produce lower costs. Advocacy rates are assessed by reference to a hypothetical competent counsel who does not charge an especially high fee because of pre-eminence. Rates above the usual upper range require an exceptional case. Guideline hourly rates may properly inform the assessment of litigation work.

Ms Euphrazia Matete brought a private prosecution arising from alleged domestic abuse. The prosecution was later taken over by the Crown Prosecution Service, which offered no evidence, and the court ordered compensation under section 17 of the Prosecution of Offences Act 1985.

The determining officer allowed Mr Khan’s work, as both advocate and litigator, at £250 per hour but rejected the claimed rate of £350. Following redetermination and written reasons, Ms Matete appealed under regulation 10 of the Costs in Criminal Cases (General) Regulations 1986. The central issue was whether the higher hourly rate was reasonably allowable.

1. Appeal dismissed. The determining officer’s decision to allow £250 per hour was upheld.

2. Regulation 7 of the Costs in Criminal Cases (General) Regulations 1986 required allowance only for work actually and reasonably done, with all relevant circumstances considered, including the nature, importance, complexity and difficulty of the work and the time involved.

3. The fact that Mr Khan acted as both litigator and advocate did not require an assumption that direct access was inevitably cheaper. The two kinds of work were properly considered separately. A direct-access barrister may charge a higher hourly rate, and the overall fee may exceed the cost of separate representation.

4. For advocacy work, the applicable approach was the hypothetical-counsel test in Simpsons Motor Sales (London) Limited v Hendon Corporation: the fee should reflect counsel able to conduct the case, without charging an especially high fee based on pre-eminent reputation.

5. Evans & Ors v The Serious Fraud Office established the relevant limits for complicated criminal proceedings. A case would have to be truly exceptional in gravity or complexity to justify rates above £500 per hour for leading counsel or £250 per hour for junior counsel. The allowed £250 rate therefore provided reasonable compensation.

6. For litigation work, a different rate from that charged in the retainer required a compelling reason. Guideline hourly rates were properly used as a reference. The applicable London 3 rates were £229 to £267 at the relevant time, making £250 reasonable.

• High Court (Senior Courts Costs Office): appeal under regulation 10 of the Costs in Criminal Cases (General) Regulations 1986 dismissed; the determining officer’s redetermined assessment was upheld.
• Determining officer: after redetermination, allowed the claimed work at £250 per hour and provided written reasons.