Kate McMahon comments on private prosecution article in Family Law Week


Comment on the article written by Andrzej Bojarski, Kate Tompkins and Cameron Crowe of 36 Bedford Row which considers private prosecution as an opportunity for a spouse in an exceptional case when all conventional options in the family courts have been exhausted.

Overall, an interesting article on private prosecutions. However, the article is misleading when it says that “the costs (of a private prosecution) are likely to be very substantial. Although those costs may be recovered if the prosecution succeeds, they will be paid to the defendants in the event the prosecution

The recent case of Bentley-Thomas v Winkfield Parish Council [2013] deals with this point. An
order for costs against the private prosecutor should only be made where there is no prospect of the case succeeding, and the case was so hopeless that it should not have been brought. Where the case has been properly brought, despite the fact it may result in an acquittal, an order for costs should not be made against the private prosecutor.

Further, this article fails to deal with the difficulties in obtaining material used in civil proceedings
(especially non-public divorce proceedings) an area which requires extra care from the private prosecutor. The case of HMRC v Charman and Another [2012] EWHC 1448 (Fam) deals a little with the care that must be taken in such circumstances.

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