[2025] EWCA Crim 1289

7 Determination of costs

The appropriate authority shall consider the claim, any further particulars, information or documents submitted by the applicant under regulation 6 and shall allow such costs in respect of –

such work as appears to it to have been actually and reasonably done; and

such disbursements as appear to it to have been actually and reasonably incurred,

as it considers reasonably sufficient to compensate the applicant for any expenses properly incurred by him in the proceedings.

In determining costs under paragraph (1) the appropriate authority shall take into account all the relevant circumstances of the case including the nature, importance, complexity or difficulty of the work and the time involved.

When determining costs for the purposes of this regulation, there shall be allowed a reasonable amount in respect of all costs reasonably incurred and any doubts which the appropriate authority may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved against the applicant.”

Rule 45.4 of the Criminal Procedure Rules applies where the court can order the payment of costs out of central funds. It gives practical effect to the provisions of the POA 1985 and the Costs General Regulations. The rule includes the following paragraphs:

The general rule is that the court must make an order, but –

…

the court may decline to make a prosecutor’s costs order if, for example, the prosecution was started or continued unreasonably; and

the court may decline to make an order if the applicant fails to provide enough information for the court to decide whether to make an order at all and, if so, whether it should be for the full amount recoverable or for a lesser sum.

If the court makes an order –

the general rule is that it must be for such amount as the court considers reasonably sufficient to compensate the applicant for any expenses properly incurred in the proceedings;

where the court considers there to be circumstances making it inappropriate for the applicant to recover that amount then the order may be for such lesser amount as the court considers just and reasonable;

the court may fix the amount to be paid in a case in which either –

the recipient agrees the amount, or

the court decides to allow a lesser sum than the full amount otherwise recoverable; and

if the court does not fix the amount itself it must direct an assessment under, as applicable –

Part III of the Costs in Criminal Cases (General) Regulations 1986 …

If the court directs an assessment, the order must specify any restriction on the amount to be paid that the court considers appropriate.”

The Practice Direction (Costs in Criminal Proceedings) 2015 [2015] EWCA Crim 1568, as amended (“the Costs Practice Direction”), has effect where this court considers an award of costs in criminal proceedings. Paragraph 1.3.1 states that where the court orders that the costs of a private prosecutor should be paid from central funds, the order will be for such amount as the court considers “sufficient reasonably to compensate the party for expenses incurred by him in the proceedings”; unless the court considers that there are circumstances that make it inappropriate to allow the full amount, in which event the court will allow “such lesser sum as it considers just and reasonable”.

Paragraph 1.4.1 states that where the court makes an order in favour of a private prosecutor, but is of the opinion that there are circumstances which make it inappropriate that the prosecutor should recover the full amount of the costs:

“… the court may assess the lesser amount that would in its opinion be just and reasonable, and specify that amount in the order. If the court is not in a position to specify the amount payable, the judge may make remarks which the appropriate authority will take into account as a relevant circumstance when determining the costs payable.”

Paragraph 2.6.1 states that in a case in which the costs of a private prosecutor may be awarded out of central funds:

“An order should be made save where there is good reason for not doing so, for example, where proceedings have been instituted or continued without good cause.”