R (TM Eye Ltd) v Dean Hall

Assessments of private prosecution costs from central funds are compensatory and case-specific. There are no fixed hourly rates applicable to all private prosecutions. The assessment must consider the nature, importance, complexity and difficulty of the work, the time involved, all other relevant circumstances and comparable market rates.

For a corporate prosecutor, reasonable compensation may include normal operating overheads and remuneration for its managing director. It is unnecessary to separate a supposed profit element unless the claimed rate plainly exceeds reasonable compensation. Travel which is an inseparable part of investigative work should ordinarily be remunerated at the same rate as that work. Publicly funded rates and rates for solicitors or public authorities may lack comparability.

TM Eye Ltd appealed under regulation 10 of the Costs in Criminal Cases (General) Regulations 1986 against determinations of costs payable from central funds under section 17 of the Prosecution of Offences Act 1985.

The appeals concerned costs incurred in the prosecution of Dean Hall for shoplifting and Florentina Radu and Carmen Tedorescu for selling counterfeit tobacco products. The Determining Officer allowed £89 per hour for substantive work and £32 per hour for travel. TM Eye sought substantially higher rates and argued that the existing rates were insufficient to sustain its business.

The central issues were whether section 17 permitted recovery of profit, how corporate overheads and director remuneration should be treated, whether the existing rates remained reasonable, and what rates should be allowed in these two cases.

1. The appeals succeeded in part. The costs judge’s jurisdiction under regulation 10 was confined to the issues raised on the appeals. It was not open to the court to prescribe fixed rates for all private prosecutions.

2. Section 17 of the Prosecution of Offences Act 1985 is purely compensatory. A private prosecutor may recover an amount reasonably sufficient to compensate expenses properly incurred, but not a separate profit margin as such. For a corporate prosecutor, reasonable compensation may include normal operating overheads and remuneration for its managing director. There is ordinarily no need for an elaborate inquiry into whether an element of the rate represents profit, unless the claimed rate appears plainly excessive.

3. Regulation 7 of the Costs in Criminal Cases (General) Regulations 1986 requires a case-specific assessment. Relevant considerations include the nature, importance, complexity and difficulty of the work, the time involved and the other circumstances of the case. Hourly rates should reflect the nature of the work rather than a fixed hierarchy of staff seniority.

4. Market evidence must be genuinely comparable. Solicitors’ rates, public authority rates and legal aid rates may not provide useful comparators for specialist private investigation and prosecution services. The absence of reliable expert evidence did not justify retaining rates unchanged for many years.

5. Travel undertaken as an inseparable part of investigative work should be remunerated at the appropriate investigative rate. The £32 legal aid rate for private investigators was not a proper comparator. The £89 rate was increased by 20 per cent, producing £107 per hour, including travel. The £118 rate for supervisory work was similarly increased to £142 per hour.

6. The conclusions were limited to the two cases under appeal. Different evidence in another case might produce a different result. The costs of the appeals remained to be determined.

The appeals were brought from redeterminations by the LAA’s Determining Officer under regulation 10 of the Costs in Criminal Cases (General) Regulations 1986. The appeals succeeded in part. The hourly rates were increased to £107 for investigative work and associated travel, and £142 for supervisory work.