TM Eye: Recovering the Costs of a Costs Appeal [2026]
Criminal Costs — 2026-05-18
In R (TM Eye Ltd) v Dean Hall [2026] EWHC 1193 (SCCO), Costs Judge Leonard reduced a successful private prosecutor’s appeal costs claim from about £45,052 to £15,000. The represented company could not recover its director’s time alongside its Costs Lawyer’s charges, and unreliable evidence generated further reductions.
Overview
Date: 18 May 2026
Judge: Costs Judge Leonard
Court: High Court of Justice, Senior Courts Costs Office
Citation: [2026] EWHC 1193 (SCCO)
Nature of Proceedings: Determination of the successful private prosecutor's costs of appeals against assessments of costs payable from central funds
Key Issues:
- The discretion under regulation 10(14) of the Costs in Criminal Cases (General) Regulations 1986
- The effect of substantial overall success despite failure on many of the appellant's arguments
- Whether a represented corporate party could recover the time of its director as well as its Costs Lawyer's charges
- The treatment of unreliable evidence, expert fees and excessive bundle preparation
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The Decision in Context
R (TM Eye Ltd) v Dean Hall, reported as [2026] EWHC 1193 (SCCO), is the costs judgment which followed TM Eye's successful appeals concerning the hourly rates payable to a private prosecutor from central funds. It is distinct from Costs Judge Leonard's earlier substantive decision, reported as [2026] EWHC 70 (SCCO).
In the earlier judgment, the judge increased the Legal Aid Agency's rates of £89 per hour for surveillance, preparatory and investigative work and test purchases, and £32 per hour for travel. The new rate was £107 per hour for all work except supervision by TM Eye's sole director, Mr McKelvey, which was allowed at £142 per hour.
The May judgment decided only the costs of those appeals. TM Eye claimed about £45,052 in an N260. The court awarded £15,000, inclusive of disbursements and with no VAT claimed.
That reduction is important. TM Eye had achieved a result with potential value well beyond the two claims under appeal, but success in principle did not make every item in its schedule recoverable. The judge removed the director's time, refused an accountant's fee, disallowed administrative bundle preparation and reduced the remaining sum to reflect work on evidence which had been unreliable or unhelpful.
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Why TM Eye Recovered Costs
The power to award the costs of the appeals came from regulation 10(14) of the Costs in Criminal Cases (General) Regulations 1986. It allows the court to award part or all of the reasonable costs incurred in connection with an appeal.
The judge stressed that this was not a CPR 44 costs decision. In particular, there was no general rule that a successful appellant should receive its costs. The award was discretionary under the specific criminal costs regime.
TM Eye nevertheless had a strong case for an award. The Legal Aid Agency had maintained rates which were based on historic decisions and had not been adjusted for years. The judge found that TM Eye had no practical choice but to appeal if it was to establish a right to more appropriate compensation for its substantial private prosecution work.
TM Eye said the Legal Aid Agency had accepted that similar increases should apply to about 28 claims which had been held pending the appeals, with an estimated benefit exceeding £200,000. The court had no substantive evidence proving those figures. It did, however, regard it as unsurprising that the updated rates would affect other claims.
The Legal Aid Agency did not appear to dispute an award in principle. Its case was that TM Eye should receive only 33 per cent of its costs, or that whole categories should be removed, because most of the appellant's arguments and much of its evidence had failed.
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Key Holdings
1. Overall success did not validate the route taken
TM Eye's primary case had been that all work and travel should attract fixed rates far above those which the judge ultimately awarded. The judgment records that this was unsustainable in principle and that the evidence did not establish the figures claimed.
TM Eye had also failed to prove that reduced section 17 recoveries since 2019 had caused its business to move from profit to loss. Its accountant's evidence conflicted sharply with evidence given in an earlier case by Mr McKelvey and another witness. Those discrepancies affected the credibility of the evidence more generally.
The comparable evidence produced by both sides was one-sided and unhelpful. The judge considered that relevant market evidence might have been addressed through an independent expert report, but none had been provided. He had therefore used a simple inflation-based adjustment founded on public records in the substantive judgment.
The result was a material success, but one achieved on a much narrower basis than the case advanced. That distinction affected the reasonable costs of obtaining it.
2. The represented company could not recover its director's time
TM Eye's schedule included Mr McKelvey's time at £330 per hour. It also included the time of Mr Strickland of Thomas Legal Costs Ltd, a qualified Costs Lawyer with rights to conduct litigation and undertake costs advocacy, who was on the court record for TM Eye.
The judge held that a represented party may recover its legal costs, not the ordinary cost of being a litigant. TM Eye could not claim both the charges of its legal representative and the time which its own director spent on the case.
Mr McKelvey was neither a qualified legal representative nor an expert witness. His time therefore fell outside the limited exceptions to the rule and was disallowed in full.
The schedule's treatment of client attendance showed the duplication clearly. It claimed 7.4 hours for Mr Strickland attending on TM Eye and the same 7.4 hours for Mr McKelvey as the client being attended upon. Only the representative's time was recoverable.
3. The accountant's fee was disallowed
TM Eye claimed £3,000 for the professional fees of its accountant, Mr Conway. Costs Judge Leonard refused the fee because of his concerns about the evidence.
The decision illustrates that a professional fee does not become recoverable merely because it appears as a disbursement. The work must have been reasonably incurred and useful to the issues. Evidence which creates material credibility concerns may not satisfy that test.
4. Administrative bundle work was not recoverable
The schedule claimed about nine hours of Mr Strickland's time for bundle work and a further 17 hours for a paralegal. The bundle was relatively straightforward.
Given the qualified representative's own time, the judge concluded that the paralegal's role must have been purely administrative. The additional 17 hours were disallowed in their entirety.
This was not a general ruling that paralegal bundle work is never recoverable. It reflected the duplication and the nature of the remaining work in this appeal. A receiving party must be able to show that claimed bundle time involved reasonable legal work rather than overhead or administration.
5. Reasonable time was reduced for unreasonable work
The judge marked the N260 to remove or reduce time which was irrecoverable, excessive or incorrectly calculated. That exercise brought the claim from about £45,052 to just over £22,000, representing Mr Strickland's reasonable time and a small amount of recoverable disbursements.
There was a further reduction because some of that otherwise reasonable time had been spent on evidence which the court found unreliable or unhelpful. Such work had been unreasonably incurred.
The final award was £15,000, inclusive of disbursements. VAT was not claimed.
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Practical Implications
For Costs Lawyers
1. Identify the correct costs jurisdiction. Regulation 10(14), not CPR 44, governed this award. The applicable test and starting point must be taken from the correct statutory regime.
2. Separate client time from representative time. A represented corporate client cannot normally add its employees' or directors' litigation time to the legal representative's charges. Avoid presenting both sides of a solicitor-client attendance as recoverable fee earning work.
3. Explain the legal content of bundle work. Time spent indexing, paginating, copying or carrying out other administrative tasks may be treated as overhead. Record the skilled task performed and avoid duplicate layers of preparation.
4. Audit disbursements for usefulness. An accountant's or expert's invoice is not self-proving. The underlying evidence must be relevant, reliable and reasonably required.
5. Allow for partial success within an overall win. A successful outcome does not protect work spent on failed, unsustainable or poorly evidenced arguments. The schedule should reflect the route by which success was actually achieved.
For Parties Pursuing Costs Appeals
1. Build the evidence around the governing test. TM Eye obtained higher rates, but its broad financial and comparable evidence did not establish the figures sought. Focused independent market evidence may have been more useful.
2. Do not confuse business impact with proof. The potential effect on 28 other claims supported the significance of the appeal, but the court recorded that it had no substantive evidence for the estimated benefit exceeding £200,000.
3. Record directors' time for management purposes, not automatic recovery. Internal time may be economically real without being a recoverable legal cost where the company is represented.
4. Use the costs schedule as an evidential document. The N260 should distinguish the representative, client, witness and expert roles accurately. Duplication can undermine confidence in the whole claim.
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Conclusion
The follow-up judgment in TM Eye v Hall shows how a substantial success can produce a much smaller costs award than the schedule claimed. TM Eye had been justified in appealing outdated rates and obtained an important practical benefit. It was therefore awarded its reasonable appeal costs under regulation 10(14).
The court nevertheless reduced the claim from about £45,052 to £15,000. The director's time was not recoverable alongside the Costs Lawyer's charges, the accountant's fee and administrative bundle work were removed, and a further reduction reflected effort spent on unreliable or unhelpful evidence.
For costs practitioners, the most useful point is the distinction between the cost of legal representation and the cost to a represented company of participating in its own litigation. Success opens the door to a discretionary award. It does not make the client's own time or every step taken to achieve the result recoverable.
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Citation: R (TM Eye Ltd) v Dean Hall; R (TM Eye Ltd) v Florentina Radu and Carmen Tedorescu [2026] EWHC 1193 (SCCO)
Full judgment available at: The National Archives
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