R (TM Eye Ltd) v Dean Hall

Neutral Citation No. [2026] EWHC 1193 (SCCO) Case No: S20230428 T20210899 SCCO Reference: SC-2024-CRI-000112 SC-2024-CRI-000115 IN THE HIGH COURT OF JUSTICE SENIOR COURTS COSTS OFFICE Thomas More Building Royal Courts of Justice London, WC2A 2LL Date: 18 May 2026 Before: COSTS JUDGE LEONARD R (TM EYE) v DEAN HALL and R (TM EYE) v (1) FLORENTINA RADU (2) CARMEN TEDORESCU Under regulation 10(14) of the Costs in Criminal Cases (General) Regulations 1986, for the reasons set out below, an award of £15,000 has been made to the Appellant in respect of the costs of these Appeals and is payable to the Appellant by the Respondent. Appellant: TM Eye Ltd Edward Strickland for the Appellant Richard Clarke for the Lord Chancellor COSTS JUDGE LEONARD

1. In January 2026 I gave judgment on these two appeals. They concerned the assessment of the costs payable to the Appellant, as a private prosecutor, from central funds under two orders made in the Appellant’s favour under section 17 of the Prosecution of Offences Act 1985.

2. The Legal Aid Agency (“LAA”)’s Determining Officer had awarded to the Appellant hourly rates of £89 per hour for surveillance, preparatory and investigative work and test purchases of counterfeit goods, and £32 per hour for travel. I increased those rates to award to the Appellant £107 for all work save for supervision by the Appellant’s sole director, Mr McKelvey, which I awarded at an hourly rate of £142.

3. This decision concerns the costs of the appeal. Under regulation 10(14) of the Costs in Criminal Cases (General) Regulations 1986, I may 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”.

4. The Appellant has produced a schedule of its claimed costs of the appeal, in form N260, totalling some £45,052.

5. The Appellant claims significant success, both in respect of the two cases under appeal and in many similar cases. I am given to understand that it is now accepted by the LAA that similar hourly rate increases should be applied to some 28 claims, put on hold by agreement pending the outcome of this appeal, and that the benefit of this appeal to the Appellant in those claims alone is estimated at in excess of £200,000.

6. I have no substantive evidence of that, but I am aware (as referred to in my January judgment) that the LAA has been paying the same hourly rates for years and that they are based upon historic Costs Judge decisions. It would be wholly unsurprising should the LAA now agree to update those rates by reference to the judgment obtained by the Appellant on these appeals.

7. I can take that further. It is evident to me that had the Appellant not pursued these appeals, the LAA (which has consistently refused to acknowledge that inflation and the passage of time has had any effect upon the hourly rates that it is appropriate to pay to the Appellant) would have continued to pay hourly rates which, as I have found, are not reasonably sufficient to compensate the Appellant in accordance with the relevant statutory provisions (as fully set out in my January judgment). In order to establish its right to be compensated at more appropriate hourly rates for the substantial body of private prosecutions it undertakes, the Appellant had no choice but to take the matter to an appeal.

8. There is, accordingly, a strong case for the Appellant to recover its costs of these appeals. In fairness to the Respondent, I do not understand that this is contested in principle. The Respondent is however concerned about the amount of costs claimed. The Respondent argues that the Appellant failed to succeed on so many of its arguments, and achieved an outcome so far short of what it actually sought, that it would be inappropriate for the Appellant to recover more than a percentage of its costs (33% is suggested). Alternatively, an issue-based approach should be adopted, in which several categories of costs should be disallowed in their entirety. Issue is also taken with the amount of time claimed.

9. I have received, and carefully considered, written submissions on the costs of this appeal from both parties, which I do not propose to reproduce in any detail here. I do however need to preface with a number of observations my conclusion on the amount to be paid.

10. First, it should be borne in mind that the award of costs in this case is not made under CPR 44 (I make this point in particular because the Appellant has referred in submissions to a number of the CPR 44 criteria and to legal authority on its application). 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.

11. Second, I should make it clear that I do not accept the Respondent’s submission to the effect that the Appellant wrongly based its case on its right to make profit from private prosecutions, and lost that argument based upon a proper reading of the relevant statutory provisions.

12. I did accept (as the Respondent submitted) that the relevant statutory provisions confer upon a private prosecutor the right to compensation for expenses incurred, not a right to profit from undertaking a prosecution. I also concluded however that, applying Re Eastwood [1975] Ch 112, “profit” in this context meant nothing more than the Appellant’s capacity to remunerate appropriately Mr McKelvey, as its sole director, so that the Respondent’s point, for the purposes of this case, was more hypothetical than real. If anyone ultimately “won” that argument, in practical terms it was the Appellant.

13. Having said that, the stated grounds upon which the Appellant based its case largely failed. The Appellant’s primary case was that it should be paid for all work, and for all travel time, at fixed rates far in excess of those awarded by me. That (as I pointed out in my judgment) was always, in principle, an unsustainable argument. Further, the evidence produced in support of the claimed figures was inadequate to make out the Claimant’s case.

14. Equally unsuccessful was the Appellant’s case to the effect that recoveries by the Appellant under section 17 orders had reduced, since 2019, to the extent that the LAA was responsible for the Appellant’s entire business operation moving from profit to loss.

15. The key evidence in that respect came from Mr Conway, the Appellant’s accountant and unofficial “financial director”. His evidence was, as I pointed out, contradicted by evidence given by Mr McKelvey and Mr Hobbs, on behalf of the Defendant, in another case (R (TM Eye Ltd) v Abdullah) about five years earlier. The discrepancies were so stark as to cast doubt upon the credibility of the Appellant’s evidence generally.

16. I also found the comparable evidence offered by both parties, by way of establishing a market rate for the work undertaken by the Appellant in these two cases, to be one-sided and entirely unhelpful. It seems, from what I have seen, that relevant market evidence does exist, and ideally (as I observed) might have been addressed in an independent expert’s report. The Appellant has not produced anything of that nature.

17. In short, most of the extensive body of evidence produced by both parties for the purposes of this appeal was of no real assistance to the court. This left me to fall back, in the absence of anything better, upon a simple inflation-based adjustment, based upon public records. The Defendant’s Costs Schedule

18. With regard to the form N260 produced by the Defendant, the Respondent takes issue with the hourly rate claimed for Mr McKelvey’s time, the time claimed for his witness statement and exhibits, the time claimed for bundle preparation and the time claimed for client attendances.

19. I can fully understand why the Respondent takes issue with the fact that Mr McKelvey’s time has been claimed at £330 per hour. That is the rate that had been claimed for his work on the appeal, rather than the much lower rate I actually awarded. Similarly, Mr McKelvey’s time as set out in the schedule is remarkably high.

20. There is however a more fundamental objection to a claim for Mr McKelvey’s time, which I cannot overlook.

21. The Appellant was not representing itself on this appeal. If it were, as a corporate entity it would have been entitled to recover costs on the principles applicable to Litigants in Person.

22. The Appellant was however represented by Mr Strickland of Thomas Legal Costs Ltd. Mr Strickland is a fully qualified Costs Lawyer with the right to conduct litigation and to undertake advocacy on cost issues. Thomas Legal Costs Ltd is on the court record for the Appellant.

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.

24. The Respondent’s costs schedule is in my view incorrectly drawn up in that it incorporates the Mr Strickland’s time and Mr McKelvey’s time as if they were both legal representatives. So, for example, under “attendances on client” it is not permissible, as the Appellant has done, 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 is attending. Only Mr Strickland’s time is recoverable.

25. In summary, Mr McKelvey’s time should not have been included in the Respondent’s costs schedule at all and must be disallowed in its entirety.

26. Nor am I prepared to allow the fee of £3,000 claimed by the Appellant for the professional fees of Mr Conway, given my concerns about his evidence.

27. I also agree with the Respondent that the time claimed by the Appellant for the preparation of bundles is excessive. The bundle itself is relatively straightforward. I am unable to understand why, in addition to some 9 hours claimed by Mr Strickland for working on it, an additional 17 hours is 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 stands to be disallowed in its entirety.

28. I have arranged for the parties to be sent with this judgment a copy of the Appellant’s costs schedule on which I have marked as disallowed or reduced time which I consider to be irrecoverable, excessive or (in one instance) incorrectly calculated. By my calculation, this brings the total down from £45,052 to just over £22,000. That reflects Mr Strickland’s reasonable time and a small amount of recoverable disbursements.

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).