Costs In Private Prosecutions, London Solicitors And The Singh Discount

Costs In Private Prosecutions

Following a successful private prosecution of his former co-director, resulting in three years of imprisonment, the claimant was awarded payment of his prosecution costs out of central funds. The designated officer allowed him the sum of £150,000 plus VAT as against a total sum of £427,909.66.

The designated officer’s determination was based largely on the disallowance of central London rates on grounds that adequate representation could have been found more locally and the application of a Singh reduction based on a comparator with the notional cost of the case being brought by the CPS.

“what has come to be known as the “Singh reduction” [or “Singh discount”] arises from “the necessity of standing back from the total hours claimed on each class of work done to assess whether globally it was reasonable”.”

The claimant sought a re-determination of this decision and his costs were increased to £200,000 + VAT.

The designated officer made no change regarding his earlier disallowance of central London hourly rates. He did, however, vary the amount of the Singh discount, saying…

“I did consider that there did remain such a very significant discrepancy [between the costs incurred and with a level of costs that would be incurred by the Public Prosecutor] and on redetermination I did apply a Singh reduction although in consideration of [R (Virgin Media Ltd) v Zinga [2014] 5 Costs LR 879], a lesser reduction than on the original determination such that an increase of £50,000 plus VAT was allowed.”

The claimant appealed to Master Rowley who upheld the decision on both counts.

Despite witness evidence to the effect that:

  • the claimant had made extensive internet searches for local representation, to no avail;
  • there were very few firms of solicitors who specialised in private prosecutions back in January 2016; and
  • he had instructed his London solicitors based on a recommendation

the Master maintained that there were local firms who could have assisted the claimant and as such the designated officer’s decision was not wrong. In terms of the Singh reduction the Master found no issue in the designated officer using the CPS as a comparator.

The Master declined to certify points of principle of general importance so as to enable the claimant to appeal to the High Court. The claimant therefore brought proceedings pursuant to the inherent jurisdiction of the High Court as described by the Court of Appeal in R v Supreme Court Taxing Office ex parte John Singh and Co [1997] 1 Costs LR 49

“Counsel for the taxing master conceded that such a jurisdiction existed but submitted that it should be restricted to cases where there had been a real injustice.

I agree with both that concession and, in general terms, with the limitation on it. In his refusal to certify, the taxing master was exercising a “strong” discretion entrusted under the statutory scheme to him. The cases where the supervisory court could reverse a failure to certify would, in the circumstances, be very rare indeed …”

R v Supreme Court Taxing Office ex parte John Singh and Co [1997] 1 Costs LR 49

The matter came before The Honourable Mr Justice Lane who after a detailed examination of the relevant authorities overturned the decisions on both hourly rates and the Singh reduction and remitted the matter to the SCCO. He found (inter alia)…

Hourly Rates

“the Master has in substance committed the error enjoined against in Dudley Magistrates’ Court. The question the Master asked himself was whether there were, in the local area, firms containing such persons as former public prosecutors, who would have had “no difficulty in bringing this prosecution”. That question is precisely analogous to the incorrect question posed by the Magistrates’ clerk in Dudley Magistrates’ Court; namely, whether “a senior solicitor or junior counsel could have properly conducted the matter on behalf of the applicants”. In the present case, the Master should, I find, have asked whether Mr Laycock “acted reasonably” in instructing EMM, just as the question in Dudley Magistrates’ Court that should have been asked was whether the applicants had “acted reasonably in employing leading counsel, which is an entirely different question…

“the answer to the question that should have been posed was, I find, plain. Mr Laycock had done everything that could reasonably be expected of a person in his position. He had made enquiries of his solicitors. He researched the matter online and did not find firms offering private prosecution services for fraud, who were more local than EMM.”

The Singh reduction

“The issue for me is whether the designated officer and the Master were … entitled, in the exercise of their discretion, to have regard to D Limited as permitting them to have regard to what it might have cost the CPS to undertake the prosecution of Mr Shinners… Despite Mr Boyle’s able submissions, I consider it plain that the judgment provides no legal justification for their decisions on this issue…

“the claimant rightly does not contend that the Singh reduction can play no part in the assessment of costs of private prosecutors. I also do not consider it can be said, as a matter of law, that it will always necessarily be wrong to look at CPS costs, when determining the amount of costs to be awarded to a private prosecutor. If an individual resolves to embark on a private prosecution with no regard to whether the state is willing and able to prosecute, a comparison with the CPS might be legitimate. That, however, was not the position in the present case.”