Acquitted defendants and private prosecutors

Recovery of legal expenses

Depending on the type of criminal proceedings acquitted defendants or private prosecutors may have:

  • a defendants costs order, or order for prosecution costs which is an order for recovery of costs from central funds i.e. money provided by the tax-payer
  • an inter-partes costs order, which is an order that the losing party before the court should pay the legal costs

Where legal costs are to be recovered, the litigator (solicitor) acting for the acquitted defendant or private prosecutor should have a bill of costs drafted and lodged with the National Taxing Team in accordance with the guidance given on the litigator page.

Where proceedings are commenced on or after 1st October 2012 and a defendants costs order for payment out of central funds includes provision for legal costs (in the magistrates court or on appeal from the magistrates court to the Crown Court) the amount recoverable will be restricted to legal aid rates. Full guidance is given on the litigators page.

Where no solicitor has acted, and the acquitted defendant has instructed a barrister under the Direct Public Access provisions, a claim must be made in person by the defendant (as the applicant) for any legal fees. Applicants should note:

  • Under the Bar Code of Conduct a barrister with less than three years experience may not accept instructions under these provisions, and instructions may not be accepted in any case in which the defendant was eligible for public funding.
  • A barrister is forbidden by paragraph 407 of the Bar Code of Conduct from receiving or handling client money, and therefore cannot have conduct of a claim for costs out of central funds.

In such cases the applicant should obtain the relevant central funds claim form and cover sheet (Direct Public Access) from FormFinder.

The applicant should note the documents required as indicated on the claim form. In particular the applicant will require from the barrister:

  • the fee notes
  • a taxing note setting out the nature of the case and the work done
  • a log of work done.

Recovery of personal expenses

Where an acquitted defendant has had a legal aid representation order, personal expenses (i.e. non-legal expenses such as travel and subsistence) only can be claimed under a defendants costs order. Where the order is not made in a fixed sum, the defendant should lodge a claim with the court and not with the National Taxing Team.

Where an acquitted defendant or private prosecutor, who has been privately represented, or who has not been represented and appeared in court in person, obtains a costs order, a separate claim for personal expenses only, should be lodged with the court and not with the National Taxing Team.

Where an acquitted defendant or private prosecutor obtains a order for the opposing party to pay the costs and expenses, the claim for personal expenses should be included in the claim for costs against the paying party.

An acquitted defendant or private prosecutor who obtains an order for costs out of central funds may not make a claim for loss of earnings, and other than a qualified lawyer may not be compensated for time spent in preparing his case.

Motor vehicle mileage rates

The rates of car mileage allowed will be those specified in the current Guide to Allowances i.e. a standard rate of 45p per mile and a public transport rate of 25p per mile. The standard rate of mileage is only paid where the use of a private motor vehicle was necessary for example:

  • Where no public transport was available
  • where a considerable saving of time is made
  • where the use of a private motor vehicle was otherwise reasonable (for example, in the case of elderly or disabled persons, or carrying exhibits).

In all other cases the public transport rate of mileage will be applied. Only where standard rate of mileage has been allowed will car parking fees or toll fees actually and reasonably incurred be allowed.

Review of expenses allowed

These expenses are payable by the court under part V of the Costs Regulations, and excluded from the appeal process set out for legal costs in Part III. The court will however within a reasonable period after the expenses have been determined, upon request informally review the expenses allowed.

HM Courts & Tribunals Service

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