No Double Recovery | Represented Party Cannot Claim Both Solicitor Fees And Director's Time

A private prosecutor’s appeal costs were reduced from £45,052 to £15,000 after the court disallowed time claimed for its director alongside its legal representative, applying the principle that a represented party may recover only legal costs.

R (TM EYE) v DEAN HALL; R (TM EYE) v FLORENTINA RADU & CARMEN TEDORESCU [2026] EWHC 1193 (SCCO)

In R (TM Eye) v Dean Hall and R (TM Eye) v Radu and Teodorescu [2026] EWHC 1193 (SCCO), Costs Judge Leonard addressed whether a represented party may recover both its legal representative’s costs and the time spent by its own employees on the litigation. The appellant, a private prosecutor, had succeeded in its appeal against hourly rates assessed by the Legal Aid Agency and claimed appeal costs of approximately £45,052, including substantial time claimed by Mr McKelvey, the appellant’s sole director, alongside time claimed by Mr Strickland, a fully qualified Costs Lawyer who had represented the appellant throughout. Applying Richards v Wellington (Plant Hire) Ltd v Monk and Co (1984) Costs LR Core Vol 79, the Judge held that a represented party may recover only legal costs, not the cost of being a litigant, and that it was not permissible to claim both the costs of the legal representative and the cost of time spent by the company’s own employees. Mr McKelvey did not fall within any of the limited exceptions to that rule as he was not legally qualified, nor was he an expert witness. His time was therefore disallowed in its entirety. This decision clarifies a fundamental principle of costs recovery that applies equally in criminal costs appeals under regulation 10(14) of the Costs in Criminal Cases (General) Regulations 1986, preventing double recovery where professional representation has been instructed.

[23] As a matter of established principle the Appellant may recover only legal costs, not the cost of being a litigant (Richards v Wellington (Plant Hire) ltd v Monk & Co, (1984) Costs LR Core Vol 79, Bingham J at 83). In consequence it is not open to the Appellant to claim both the costs of its legal representative and the cost of the time spent on the litigation by its own employees. Mr McKelvey does not fall within any of the limited exceptions to that rule as he is not legally qualified, nor was he an expert witness.

Citations

Re Eastwood [1975] Ch 112 A private prosecutor’s right to compensation for expenses does not include a right to profit, but it allows for appropriate remuneration of company directors involved in the prosecution. Richards v Wellington (Plant Hire) Ltd v Monk & Co, (1984) Costs LR Core Vol 79, Bingham J at 83 Only legal costs, not the costs of being a litigant or employing one’s own staff, are recoverable, unless specific exceptions such as legal qualification apply.

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The discretion to award costs of an appeal under regulation 10(14) of the Costs in Criminal Cases (General) Regulations 1986 is materially distinct from the costs regime under CPR 44. There is no general rule that a successful appellant will recover its costs; the matter rests entirely with the court, and references to CPR 44 criteria and associated authority are not directly applicable. [10]
Where a party is represented by a legal representative on the court record, it may not additionally claim the time spent by its own employees on the litigation. The recoverable costs are limited to the legal costs properly so called; the cost of being a litigant is not recoverable alongside the costs of legal representation. This principle applies regardless of the seniority or involvement of the employee concerned, unless that employee falls within a recognised exception such as being legally qualified or acting as an expert witness. [21, 22, 23, 25]
A costs schedule that incorporates both the time of the instructed legal representative and the time of the client’s own employee, treating both as if they were legal representatives, is incorrectly drawn. Where, for example, attendances on client are claimed by both the legal representative and the client’s employee simultaneously, only the legal representative’s time is recoverable. [24, 25]
Where a witness’s evidence has been found to be contradicted by earlier evidence given on behalf of the same party in separate proceedings, and those discrepancies are sufficiently stark to cast doubt on the credibility of that evidence generally, the court may disallow in their entirety the professional fees of that witness claimed within a costs schedule. [26]
Time claimed in a costs schedule for work that was found to be unreliable, unhelpful, or otherwise unreasonably incurred during the substantive proceedings may be further reduced on assessment of the costs of the appeal, even where the time spent on that work was reasonable in amount. The court may apply a further reduction to reflect the fact that costs were incurred in pursuing arguments or adducing evidence that did not assist the court. [29]

[29] "I bear in mind however that some of that time, albeit reasonable in amount, will have been spent upon evidence which I found to be unreliable or unhelpful, and so will have been unreasonably incurred. My conclusion is accordingly that the amount payable by the Respondent for the Appellant's costs of this appeal should be reduced further, and should be assessed at a total of £15,000 inclusive of disbursements (VAT is, rightly, not claimed)."

Key Findings In The Case

The judge determined that although the Appellant succeeded in obtaining increased hourly rates for certain types of work, their overall arguments largely failed, especially where their primary case was that all work and travel time should be compensated at rates far above what was ultimately awarded [13].
The Appellant’s attempt to claim costs for both its legal representatives and its own employee, Mr McKelvey, was disallowed. The judge ruled that only Mr Strickland’s legal costs were recoverable, illustrating the principle that time spent by a client’s employees on litigation is not recoverable when represented by legal counsel on record [24, 25].
The judge found that Mr Conway’s professional fees should not be allowed in the costs schedule due to doubt over his credibility arising from considerable discrepancies in his evidence, compared to evidence from a prior case involving the Appellant [15, 26].
Excessive time claimed for bundle preparation was not accepted. The judge disallowed 17 hours of paralegal work deemed purely administrative, demonstrating the principle that excessive or unnecessary administrative work is not recoverable [27].
The court decided that the Appellant’s total costs should be reduced significantly, from approximately £45,052 to £15,000, to account for time spent on unhelpful evidence and arguments that did not aid the court, illustrating the broader principle that even reasonably incurred costs may face reduction if linked to unsuccessful arguments or unreliable evidence [28, 29].

[10] "First, it should be borne in mind that the award of costs in this case is not made under CPR 44… The discretion conferred on this court by regulation 10(14) of the Costs in Criminal Cases (General) Regulations 1986 is quite different. There is, for example, no general rule that a successful Appellant will be awarded its costs. It is a matter for the court."

The Senior Courts Costs Office’s decision in R (TM Eye) v Dean Hall and R (TM Eye) v Radu and Teodorescu [2026] EWHC 1193 (SCCO) concerned the costs of two conjoined appeals by a private prosecutor against hourly rates assessed by the Legal Aid Agency under section 17 of the Prosecution of Offences Act 1985.

Background

TM Eye Ltd is a private prosecution company that undertakes surveillance, investigative and test purchase operations in connection with the sale of counterfeit goods. As a private prosecutor, it is entitled to recover its costs from central funds under section 17 of the Prosecution of Offences Act 1985, with those costs assessed by the Legal Aid Agency (“LAA”). Two separate prosecutions had been brought by TM Eye Ltd, one against Dean Hall and one against Florentina Radu and Carmen Teodorescu. In both cases, costs orders under section 17 were made in TM Eye Ltd’s favour.

On assessment, the LAA’s Determining Officer awarded hourly rates of £89 per hour for surveillance, preparatory and investigative work and test purchases of counterfeit goods, and £32 per hour for travel. TM Eye Ltd appealed those rates to the Senior Courts Costs Office. In January 2026, Costs Judge Leonard gave judgment on the two appeals together, increasing the rates awarded. The Judge awarded £107 per hour for all work, save for supervision carried out by Mr McKelvey, the Appellant’s sole director, which was awarded at £142 per hour. The Judge found that the LAA had been paying the same hourly rates for years, based on historic Costs Judge decisions, and that those rates were not reasonably sufficient to compensate the Appellant in accordance with the relevant statutory provisions. In the absence of more helpful evidence from either party, the Judge applied a straightforward inflation-based adjustment using public records.

Following the substantive judgment, the question of the costs of the appeal fell to be determined. The Appellant produced a costs schedule in form N260 totalling approximately £45,052. It was also noted that some 28 further claims had been put on hold by agreement pending the outcome of the appeal, and that the benefit of the judgment to the Appellant across those claims was estimated at in excess of £200,000. The Judge noted however that he had no substantive evidence of that figure. The costs of the appeal were determined by Costs Judge Leonard on 18 May 2026.

Costs Issues Before the Court

The jurisdiction to award costs of the appeal arose under regulation 10(14) of the Costs in Criminal Cases (General) Regulations 1986, which permits the court to award to a successful appellant “a sum in respect of part or all of any reasonable costs (including any fee payable in respect of an appeal) incurred by him in connection with the appeal“. The Judge noted at the outset that this discretion is materially different from the costs regime under CPR 44. There is, for example, no general rule that a successful appellant will be awarded its costs; it is a matter for the court.

The Respondent, represented by Richard Clarke for the Lord Chancellor, did not contest the principle that some costs should be awarded to the Appellant. The dispute centred on the amount. The Respondent argued that the Appellant had failed on so many of its arguments, and had achieved an outcome so far short of what it had sought, that recovery should be limited to 33% of its costs. Alternatively, the Respondent proposed an issue-based approach under which several categories of costs should be disallowed entirely. The amount of time claimed was also challenged.

The specific items in dispute within the costs schedule included: the hourly rate claimed for Mr McKelvey’s time (claimed at £330 per hour, being the rate sought on the substantive appeal rather than the rate actually awarded); the time claimed for Mr McKelvey’s witness statement and exhibits; the time claimed for bundle preparation; and the time claimed for client attendances. A professional fee of £3,000 claimed for Mr Conway, the Appellant’s accountant and unofficial financial director, was also in issue.

A more fundamental objection also arose in relation to Mr McKelvey’s time. The Appellant had been represented throughout the appeal by Mr Strickland of Thomas Legal Costs Ltd, a fully qualified Costs Lawyer with the right to conduct litigation and to undertake advocacy on costs issues. Thomas Legal Costs Ltd was on the court record for the Appellant. The costs schedule had been drawn up so as to include both Mr Strickland’s time and Mr McKelvey’s time, as if both were legal representatives. The question arose whether it was permissible for the Appellant to claim both the costs of its legal representative and the time spent by its own employee on the litigation.

The Parties’ Positions

The Appellant contended that it had achieved significant success, both in the two cases under appeal and more broadly, given the knock-on effect on the 28 further claims that had been stayed pending the outcome. It submitted that the benefit of the appeal to the Appellant was estimated at in excess of £200,000 across those claims alone, and that it had had no realistic alternative but to pursue the appeals in order to establish its entitlement to be compensated at appropriate hourly rates. On that basis, the Appellant argued for recovery of its costs in full or close to full, relying in part on CPR 44 criteria and associated legal authority.

The Respondent’s position was that the Appellant’s success was substantially qualified. The Appellant’s primary case, that it should be paid for all work and all travel time at fixed rates far in excess of those actually awarded, had always been unsustainable in principle and had failed. The evidence produced in support of the claimed figures had been found to be inadequate. The Appellant’s case that recoveries under section 17 orders had caused its business to move from profit to loss had also failed, with the key evidence from Mr Conway found to be contradicted by evidence given by Mr McKelvey and Mr Hobbs in an earlier case, R (TM Eye Ltd) v Abdullah. The Respondent submitted that a 33% recovery was appropriate, or alternatively that an issue-based approach should be adopted with several categories disallowed entirely. The Respondent also challenged the inclusion of Mr McKelvey’s time in the schedule and the rate at which it had been claimed.

The Court’s Decision

Costs Judge Leonard began by addressing the legal framework. The award was made under regulation 10(14) of the Costs in Criminal Cases (General) Regulations 1986, not under CPR 44. The Judge noted that the Appellant’s submissions had referred to CPR 44 criteria and related authority, but made clear that the discretion under regulation 10(14) operates differently. There is no general rule that a successful appellant recovers its costs.

The Judge rejected the Respondent’s submission that the Appellant had wrongly based its case on a right to profit from private prosecutions and had lost that argument. The Judge accepted that the relevant statutory provisions confer a right to compensation for expenses incurred, not a right to profit. However, applying Re Eastwood [1975] Ch 112, “profit” in this context meant no more than the Appellant’s capacity to remunerate Mr McKelvey appropriately as its sole director. The Respondent’s point was therefore more hypothetical than real, and in practical terms the Appellant had the better of that argument.

The Judge acknowledged that the Appellant’s stated grounds had largely failed. The primary case, that all work and travel time should be paid at fixed rates far in excess of those awarded, was described as always having been unsustainable in principle. The evidence in support was inadequate. The case based on the business moving from profit to loss also failed, with Mr Conway’s evidence found to be contradicted by earlier evidence from Mr McKelvey and Mr Hobbs in R (TM Eye Ltd) v Abdullah, the discrepancies being sufficiently stark to cast doubt on the credibility of the Appellant’s evidence generally. The comparable market rate evidence offered by both parties was found to be one-sided and entirely unhelpful. The Judge observed that relevant market evidence did exist and might ideally have been addressed in an independent expert’s report, but no such report had been produced. The result was that the Judge had fallen back on a simple inflation-based adjustment using public records.

Turning to the costs schedule itself, the Judge addressed the inclusion of Mr McKelvey’s time. The Appellant had been represented by Mr Strickland of Thomas Legal Costs Ltd, a fully qualified Costs Lawyer with the right to conduct litigation and advocacy on costs issues. The Appellant was therefore not a litigant in person, and the principles applicable to litigants in person did not apply. Applying the principle in Richards v Wellington (Plant Hire) Ltd v Monk and Co (1984) Costs LR Core Vol 79, Bingham J at page 83 (citation as given in the judgment), the Appellant could recover only legal costs, not the cost of being a litigant. It was not open to the Appellant to claim both the costs of its legal representative and the cost of the time spent on the litigation by its own employees. Mr McKelvey did not fall within any of the limited exceptions to that rule as he was not legally qualified, nor was he an expert witness.

The Judge found that the Appellant’s costs schedule was incorrectly drawn up in that it incorporated both Mr Strickland’s time and Mr McKelvey’s time as if they were both legal representatives. For example, under “attendances on client” it was not permissible to claim both 7.4 hours of Mr Strickland’s time as the legal representative and 7.4 hours of Mr McKelvey’s time as, in effect, the client upon whom Mr Strickland was attending. Only Mr Strickland’s time was recoverable. Mr McKelvey’s time was disallowed in its entirety.

The Judge also declined to allow the fee of £3,000 claimed for the professional fees of Mr Conway, given the concerns about his evidence. The time claimed for the preparation of bundles was also found to be excessive. The bundle itself was relatively straightforward. The Judge was unable to understand why, in addition to some 9 hours claimed by Mr Strickland for working on it, an additional 17 hours was claimed for a paralegal. Given the amount of time spent by Mr Strickland on the bundle, the paralegal’s role must have been purely administrative. It was disallowed in its entirety.

The Judge marked as disallowed or reduced time which was considered to be irrecoverable, excessive or, in one instance, incorrectly calculated. This brought the total down from £45,052 to just over £22,000, reflecting Mr Strickland’s reasonable time and a small amount of recoverable disbursements. The Judge bore in mind however that some of that time, albeit reasonable in amount, would have been spent upon evidence which had been found to be unreliable or unhelpful, and so would have been unreasonably incurred. The amount payable by the Respondent for the Appellant’s costs of the appeal was accordingly reduced further, and was assessed at a total of £15,000 inclusive of disbursements.

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