Elie Taktouk v Benherst Finance Limited and Chestone Industry Holding, R (on the application of)

Applications by private prosecutors for costs from central funds are effectively ex parte and must be candid, rule-compliant and sufficiently particularised. The court must first decide whether to make any order, then assess the sum reasonably sufficient to compensate properly incurred expenses. Under Prosecution of Offences Act 1985, section 17(2A), it may award less, even without misconduct. Applicants should give state prosecuting authorities an opportunity to take over at an appropriate stage and should test the market for legal services. Failure to do so may limit recovery. An inadequate bill and disclosure failures may also justify a reduction.

Following a private prosecution for fraud and related confiscation proceedings, the appellant’s confiscation appeal was allowed on fresh-evidence grounds: [2025] EWCA Crim 71. The private prosecutors then sought £198,718 from central funds under section 17(1) of the Prosecution of Offences Act 1985 for resisting that appeal.

The initial application omitted required work and costs information, did not explain why state prosecuting authorities had not been approached or whether the market had been tested, and misstated the statutory discretion. Further evidence was supplied after the Lord Chancellor intervened. The issues were whether to make an order, how to assess the reasonably sufficient sum, and whether a reduction was justified.

Application granted in part. The court ordered payment from central funds, subject to assessment and a 50 per cent reduction.

1. Applicable approach. The court was bound by and followed R v. BDI and others [2025] EWCA Crim 1289. An application under section 17 must enable the court to decide whether to make an order and, if so, the appropriate amount. The applicant must be candid because the application is effectively ex parte. The relevant matters include state engagement, fee calculation and market testing, compliance with Criminal Procedure Rule 45.4, and appropriate particulars of earlier costs orders.
2. Statutory discretion. Consistently with R. (TM Eye Ltd) v Southampton Crown Court [2022] 1 Cr App R 6, the court must first decide whether to make an order and then assess the sum reasonably sufficient to compensate properly incurred expenses. Section 17(2A) permits a lesser award even where the prosecutor has not acted improperly or been guilty of misconduct.
3. State prosecution and market testing. A private prosecutor should give the police and state prosecuting authorities an appropriate opportunity to undertake the investigation and prosecution. Evidence that they probably would have declined is weaker than an actual decision after referral. In confiscation proceedings there is a further opportunity to ask the CPS to take over. The objective assessment of fees is assisted by a genuine market-testing exercise. The relevant measure is not merely what was reasonable from the prosecutor’s perspective, but what could reasonably have been spent to conduct the case proficiently.
4. Other factors. Section 17 covers investigative as well as legal expenses. The failure to disclose intelligence reports about the appellant’s wealth was capable of justifying a reduction, although the defence could have requested the material, because it undermined the hidden-assets case.
5. Order. The determining officer was directed to assess the reasonably sufficient sum, with particular scrutiny of duplication and the allocation of fresh-evidence appeal work between counsel, solicitors and paralegal staff. The court then reduced that sum by 50 per cent under section 17(2A), reflecting the defective application, inaccurate statement of the law, failures to involve state authorities and test the market, and the disclosure failure. The court did not find that the claim was in fact excessive.

The court accepted that central-funds orders do not directly reduce budgets available to state investigators and prosecutors. It doubted whether the contrary observation in R v. BDI and others [2025] EWCA Crim 1289 was intended, and said that observation was not essential to that decision.

• Court of Appeal (Criminal Division): the present court determined the private prosecutors’ application for costs of resisting the confiscation appeal and ordered assessment followed by a 50 per cent reduction.
• Court of Appeal (Criminal Division), 5 February 2025: the appellant’s confiscation appeal was allowed on fresh-evidence grounds, [2025] EWCA Crim 71.
• Crown Court at Southwark: original fraud and confiscation proceedings, case no T2019 7030.