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If you have had to fund your own defence, then you will be seriously out of pocket by the time you have proven your innocence. This page explains how to claim court expenses and legal costs.
This page was kindly updated by Daniel Berke at 3D Solicitors in July 2021 and refers to the situation in England and Wales.
If you are acquitted, you will want to claim court expenses and legal costs. This is the situation in England and Wales.
Defendant Costs Orders
The Legal Aid, Sentencing and Punishment of Offenders Act 2012, Sch 7 (LASPO 2012) made significant changes to the regime which governs the making of a defendants’ costs order (DCO) under the Prosecution of Offences Act 1985 (POA 1985).
The effect of these amendments was to limit the costs, including the legal costs, that an acquitted defendant may be awarded as part of the DCO.
When may a costs order be made?
The application for a costs order is normally made at the end of a trial, after the verdict is given. The barrister will apply to the judge for a DCO to be made.
Claims for costs incurred in criminal courts are paid for by the taxpayer out of central funds. The Criminal Cases Unit decide on these claims. Claims to the CCU must be made within three months of the end of proceedings. The CCU may reject your claim if it is submitted late.
Following the introduction of the financial eligibility threshold for the Crown Court legal aid (from 27 January 2014), legal costs are limited to the legal aid rates.
Essentially, the effect of these changes means that almost all privately funded defendants will be unable to recover the full costs of their defence if they are acquitted. This is because of the difference between the legal aid rates which is what would be considered in a DCO and the private criminal litigation fee.
Legal costs include fees, charges, disbursements and other amounts payable for the advocacy services or litigation services. This means that legal costs include the charges from the solicitor and/or barrister.
Privately funded defendants may be entitled to recover their legal costs under a DCO, but this will be no more than the legal aid rates.
A DCO can only be made for legal costs incurred in the Crown Court if the defendant has made an application for legal aid AND that application has been refused.
A non-legally aided defendant is entitled to recover their legal costs, but only to the limit of the legal aid rates if they are acquitted ONLY if they have applied for and been refused legal aid.
If a defendant is eligible for legal aid but chooses to fund their defence privately, they will be unable to recover their legal costs on acquittal. Therefore, even if intending to pay privately, it would make sense to apply for legal aid and that application be refused, so that the DCO for legal costs can be awarded at the end of the proceedings.
To see the forms used, which include the relevant figures for legal aid:
The amount payable is determined by the Lord Chancellor and the document listing the rates can be found on the same webpage.
Defendants who have benefitted from legal aid will only be able to claim for their personal expenses (which is limited to travel and subsistence allowance – see below).
Personal expenses can be reclaimed, and the relevant forms are usually supplied on attendance at court.
You may receive compensation towards:
• Money spent on refreshments and meals
• Overnight subsistence
• Bus and train fares (standard fare), which are normally repaid in full,
• Taxi fares are allowed in exceptional circumstances. However, discretion should be applied, such as other form of transport being available.
As the defendant, loss of earnings cannot be recovered as they are not ‘expenses properly incurred by him in the proceedings.’ Ordinary witness subsistence allowance and travelling expenses are the only recoverable expenses for a defendant.
Other witnesses of fact can claim their expenses in the same way. Character witnesses are only entitled to receive payment from central funds where the court certifies that the interests of justice require their attendance.
Please remember to keep all receipts and/or invoices.
Also, please note that set limits apply to refreshments and meals and subsistence allowance. The full list can be found at the following link; however, defendants can only claim for travel and subsistence.
An example of this limit is:
• Attendance not exceeding 5 hours – £2.25
• Attendance exceeding 5 hours but not exceeding 10 hours – £4.50
• Attendance exceeding 10 hours – £9.75
The period of attendance includes time spent travelling to and from court as well as the time spent at court. However, you can only claim for the time you had to attend.