R Bar Standards Board v Disciplinary Tribunal of the Council of the Inns of Court, Natasha Sivanandan
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Mr Justice Collins |
| Judgment Date | 16 May 2014 |
| Neutral Citation | [2014] EWHC 1570 (Admin) |
| Date | 16 May 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5700/2013 |
[2014] EWHC 1570 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moses
Mr Justice Collins
Case No: CO/5700/2013
and
Mr Timothy Brennan QC (instructed by Fredelinda Telfer) for the Claimant
Mr Richard Wilson QC (instructed by Natasha Sivanandan) for the Interested Party
Hearing date: 27 th March, 2014
The Bar Standards Board seeks judicial review of a decision of the Disciplinary Tribunal of the Council of the Inns of Courts on costs.
There was no dispute but that it was open to the Bar Standards Board to bring these proceedings by way of judicial review since no appeal lay against the decision of the Disciplinary Tribunal to the Visitors under Regulation 25 of the Disciplinary Tribunals Regulations 2009 (amended February 2012). Such an appeal lies only against conviction or sentence, and an order for costs is not a sentence under Regulation 19. (See also Mackay J in Connerty v BSB [D 2004/082] 10 July 2008.) The principle in R v Visitors to the Inns of Court ex-parte Calder [1994] QB 1 does not apply.
On 6 September 2012 disciplinary proceedings were determined in favour of the interested party, a barrister not currently in practice, and not practising at the time of the complaint against her that led to the disciplinary charges. The Tribunal ordered that the Bar Standards Board should pay for her costs and appointed an assessor to determine the amount. By a decision dated 14 February 2013 Mr Post QC ordered that the Bar Standards Board should pay costs in the sum of £27,521.50. Included within that amount was a figure for the costs of the barrister's time, claimed at the rate of £120 per hour. It is important to emphasise that the number of hours she had spent resisting the allegations was 166 hours. The only dispute was as to rate.
It is necessary to recall the basis upon which the assessor reached a figure of £120 per hour. The starting point is Regulation 31 of the Disciplinary Tribunals Regulations 2009. By Regulation 31(1) the Disciplinary Tribunal has power to make such orders for costs either against or in favour of a defendant, as it sees fit. By Regulation 31(2) the Disciplinary Tribunal is required, either itself or through an appointee, to determine the amount of such costs. It can be seen and is agreed that the Civil Procedure Rules 1998 do not apply. Nevertheless, the assessor took the view that they were, as he put it, "persuasive" as to how he should exercise his discretion. The Bar Standards Board supports that view. But it disputes the approach the assessor adopted once he had determined that he should proceed as if the Civil Procedure Rules 1998 applied.
The assessor took the view that he was bound by Miller v Bar Standards Board, a decision of Ryder J, sitting as a Visitor, in 2012. In those proceedings, Ryder J applied the principle in London Scottish Benefit Society v Chorley (1884) 12 QBD 452, that a solicitor acting as a defendant in person was held entitled to reasonable professional remuneration for work which, if he had not performed it himself, would have had to be done by another solicitor and paid for by his unsuccessful opponent (see per Denman J (1884) 12 QBD 452, at 455). I shall have occasion to return to this decision and to the decision of the Court of Appeal later. Ryder J took the view that had the CPR applied:-
"the appellant as a litigant in person would be entitled to the amount of costs for which he can prove financial loss ( CPR Rule 48.6(4)(a)) and that the measure of financial loss where a barrister or solicitor is concerned is what it would have cost him to instruct another lawyer to carry out the work he had done for himself." [21]
Taking the view that he was bound by this decision, although he expressed doubts, the assessor, Mr Post QC, took the view that by reason of her status as a barrister and the fact that she conducted the proceedings herself, she had established "financial loss sufficient to allow recovery of two-thirds of the rate a solicitor would have charged" (paragraph 16 of the determination). The deduction of one-third arises as a result of the operation of Rule 48.6(2) of the CPR 1998.
The Bar Standards Board contends that, on a proper construction of the CPR and tutored by the decision of the Court of Appeal in Malkinson v Trim [2002] EWCA Civ 1273 [2003] 1 WLR 463, the interested party was entitled to no more than that to which a litigant in person would have been entitled. The expenditure of her time and skill did not amount to financial loss within the meaning of Rule 48.6(4)(a).
Civil Procedure Rules 1998 and Practice Directions
Under the rubric "litigants in person" Rule 48.6 of the Civil Procedure Rules 1998 applies where a court orders that the costs of a litigant in person are to be paid by any other person (48.6(1)). The costs allowed under the Rules must not exceed, except in the case of a disbursement, two-thirds of the amount which would have been allowed if the litigant in person had been represented by a legal representative (48.6(2)). By 48.6(6):-
"For the purposes of this Rule, a litigant in person includes –
…
(b) a barrister…who is acting for himself."
By 48.6(4):-
"The amount of costs to be allowed to the litigant in person for any item of work claimed shall be –
(a) where the litigant can prove financial loss, the amount that he can prove he has lost for time reasonably spent on doing the work; or
(b) where the litigant cannot prove financial loss, an amount for the time reasonably spent on doing the work at the rate set out in the costs Practice Direction."
Practice Direction 48.3(d) refers to Rule 48.6. It provides:-
"52.2. Where a litigant in person wishes to prove that he has suffered financial loss he should produce to the court any written evidence he relies on to support that claim…"
By PD 52.5:-
"Attention is drawn to Rule 48.6(6)(b). A solicitor who, instead of acting for himself, is represented in the proceedings by his firm or by himself in his firm name, is not, for the purposes of the Civil Procedure Rules, a litigant in person."
An editorial note comments:-
"a litigant in person may now include…a barrister, solicitor, solicitor's employee or other authorised litigator acting for themselves. The previous exemption for a solicitor acting on their own behalf has been removed, although para. 52.5 of the Directions provides a way out of the difficulty. An in-house legal representative who is in possession of a Practising Certificate or equivalent authorisation will not be treated as a litigant in person, but the legal representative will be able to recover costs in the normal way."
The Principle in The London Scottish Benefit Society
The argument focussed on whether the Civil Procedure Rules 1998 altered the principle established in the London Scottish Benefit Society that a solicitor-litigant acting in person was entitled to costs incurred in the expenditure of his own professional skill. Mr Post QC cited the decision of the Court of Appeal in Malkinson v Trim and seemed to have come to the view that the provisions of CPR Rule 48.6 applied and that it did have the effect of abrogating the principle in London Scottish [13]. But he felt himself bound by the decision of Ryder J in Miller to reach the opposite conclusion. It is therefore necessary, in order to understand the effect of CPR 48.6(6), and of Malkinson v Trim, to start with the decision of London Scottish Benefit Society v Chorley in the Divisional Court (1884) 12 QBD 452 and in the Court of Appeal (1884) 13 QBD 872. The Master rejected the contention that solicitors acting as defendants in person ought not to be...
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