Private Prosecutor Hourly Rates: Recovery From Central Funds Under s.17 POA 1985 — TM Eye v Hall
Detailed Assessment — 2026-01-16
Costs Judge Leonard increased the hourly rates recoverable from central funds by a private prosecutor (TM Eye Ltd) under s.17 Prosecution of Offences Act 1985, applying a 20% inflation uplift to raise investigative work from £89 to £107/hour and supervisory work from £118 to £142/hour. The court held that travel time must be remunerated at the same rate as investigative work (eliminating the previous £32/hour travel rate), and that a corporate prosecutor's recovery of director remuneration does not breach the compensatory principle.
Overview
Date: 16 January 2026
Judge: Costs Judge Leonard
Nature of Proceedings: Appeal against determination of hourly rates for private prosecutor's costs from central funds under s.17 Prosecution of Offences Act 1985
Key Issues:
- What hourly rates are appropriate for investigative work carried out by a private prosecutor
- Whether private prosecutors can recover a "profit" element from central funds
- Whether travel time should be remunerated at a lower rate than investigative work
- How stale hourly rates should be adjusted for inflation
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The Facts
TM Eye Ltd is one of the United Kingdom's most active private investigation and private prosecution companies, founded and directed by David McKelvey, a retired Detective Chief Inspector with over 30 years of police service. The company has successfully prosecuted over 1,000 defendants with an approximately 98% conviction rate, specialising in organised crime, intellectual property, counterfeit goods, human trafficking, modern slavery, and retail crime.
Two cases were before the court on appeal. In the first, Dean Hall was prosecuted for three shoplifting offences at Fortnum & Mason with a total value of £535.80. He pleaded guilty and was sentenced to 22 weeks' imprisonment suspended for 18 months. In the second, Florentina Radu and Carmen Tedorescu were prosecuted for selling counterfeit tobacco products via Facebook, following four test purchases between January and February 2021. After a four-day trial, both defendants were acquitted on all charges.
In both cases, the Determining Officer had allowed £89 per hour for all substantive work and £32 per hour for travel --- rates that had remained unchanged since Master Simons' decision in TM Eye Ltd v Singh some 10 years earlier. TM Eye appealed, seeking substantially higher rates.
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The "Profit" Question
A central issue was whether section 17 of the 1985 Act permits a private prosecutor to recover an element of profit from central funds. The Legal Aid Agency argued that the statutory language --- providing for "such amount as the court considers reasonably sufficient to compensate the prosecutor for any expenses properly incurred" --- is purely compensatory and excludes profit.
Costs Judge Leonard agreed that the provision is compensatory, but rejected the suggestion that this excludes reasonable remuneration for the company's sole director:
> "What has been described in this case as 'profit' seems to me to be no more than a reference to remuneration to Mr McKelvey, the Appellant's sole director and controlling shareholder."
Applying the principle from Re Eastwood (Deceased) [1975] Ch 112, the Judge held that there is no reason to treat a party employing its own staff differently from one engaging external services. A corporate entity is entitled to recover its normal operating costs, including appropriate remuneration for its managing director:
> "There is no breach of the compensatory or indemnity principles in the Appellant receiving remuneration for the provision of services which is sufficient to allow it to offer appropriate remuneration to its managing director."
This is an important clarification for all private prosecutors structured as corporate entities. What opponents may characterise as "profit" may in reality be nothing more than the reasonable cost of employing the people who do the work.
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Travel Time and Comparable Evidence
The Determining Officer had allowed travel and surveillance at just £32 per hour, compared with £89 per hour for investigative work. Costs Judge Leonard found this distinction unsustainable:
> "I cannot see how an hourly rate for travel which is lower than the hourly rate paid by the Appellant to the investigator doing the travelling, could ever be said to represent reasonable remuneration to the Appellant."
The Judge concluded that an investigator's travel was "an inseparable part of the investigatory work for which a higher hourly rate was found to be appropriate, and that as such it should be remunerated at the same rate."
The Judge also rejected the comparable evidence put forward by the Legal Aid Agency's representative, Ms Burdett, which included store security guard rates, Financial Conduct Authority investigator rates, piecemeal private investigator rates, Oxford City Council Trading Standards officer rates (ranging from £31 to £118 per hour), and police officer hourly costs. The Judge found these had "very limited if any bearing upon the costs of the investigations and prosecutions undertaken by the Appellant in these two cases." The difficulty was that no genuinely comparable evidence existed for the specialist private prosecution services provided by TM Eye.
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Inflation Adjustment
The rates of £89 and £32 per hour had been frozen since 2015. The Judge acknowledged that "no business is inflation-proof" and that some increase was necessary, but noted the absence of detailed evidence of TM Eye's actual cost increases.
Using the Bank of England's CPI-based inflation calculator, the Judge observed that £89 in 2015 would have increased to £117.66 by 2023 (when the work was completed). However, applying Regulation 7(3) of the 1986 Regulations --- which requires doubts to be resolved against the applicant --- the Judge adopted a more conservative 20% increase, cross-checked against the Service Producer Price Index (SPPI), which showed annual increases of 2.4% between 2015 and 2025, equating to "just under 20%" over the 2015-2023 period.
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The Orders
The Judge increased the hourly rates as follows:
- Investigative, surveillance, and travel work: £89 increased by 20% to £107 per hour (including travel, which was no longer to be remunerated at a lower rate)
- Supervisory work by Mr McKelvey: £118 increased by 20% to £142 per hour
The Judge emphasised that these were "limited to the two cases under appeal" and represented "a broad-brush exercise based on limited evidence." The appeals succeeded in part.
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Key Takeaways
For Solicitors
1. "Profit" is not a dirty word for corporate prosecutors --- Where a private prosecution company's alleged profit is in substance the reasonable remuneration of its director and staff, this falls within the compensatory scope of section 17. The Re Eastwood principle ensures parity between employed and external services.
2. Travel time should match investigative rates --- The artificial distinction between travel and investigation rates has been rejected. Practitioners claiming from central funds should argue for a single rate covering all investigative activity, including travel.
3. Challenge stale rates with inflation evidence --- Rates that have remained unchanged for years are vulnerable to challenge. The CPI and SPPI provide objective benchmarks, though the burden lies on the applicant to provide evidence of actual cost increases. In the absence of such evidence, the court will resolve doubts in favour of the paying party.
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Conclusion
TM Eye v Hall provides welcome clarity on the assessment of private prosecutors' costs from central funds. The decision confirms that corporate prosecutors are entitled to recover all normal operating costs --- including director remuneration that opponents may characterise as "profit" --- provided these are genuinely incurred in the prosecution. The artificial distinction between travel and investigative rates has been eliminated, and the Judge has demonstrated a willingness to update stale hourly rates for inflation, even where the applicant's evidence is limited.
The broader significance lies in the court's recognition that private prosecutors occupy a unique position in the costs landscape. Generic comparables drawn from security guards, local authority employees, or piecemeal private investigators are of little assistance. Determining Officers and costs judges must assess rates by reference to what is "reasonably sufficient to compensate" the actual prosecutor, not by reference to the cheapest alternative service that might theoretically have been engaged.
For future cases, private prosecutors would be well advised to prepare detailed evidence of their actual operating costs, staff remuneration, and overheads, to assist the court in moving beyond the "broad-brush exercise" that the limited evidence in this case required.
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Citation: TM Eye, R (On the Application Of) v Hall [2026] EWHC 70 (SCCO)
Full judgment available at: BAILII
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