R (Bar Standards Board) (Respondent/Claimant) v Disciplinary Tribunal of the Council of the Inns of Court Natasha Sivanandan (Interested Party/Appellant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lady Justice King DBE |
| Judgment Date | 24 May 2016 |
| Neutral Citation | [2016] EWCA Civ 478 |
| Docket Number | Case No: C1/2014/2591 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 May 2016 |
and
[2016] EWCA Civ 478
Lord Justice McCombe
and
Lady Justice King
Case No: C1/2014/2591
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION,
ADMINISTRATIVE COURT
(LORD JUSTICE MOSES AND MR JUSTICE COLLINS)
CO/5700/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant in Person
Timothy Brennan QC (instructed by Bar Standards Board) for the Respondent
Hearing date: 11 May 2016
This is an appeal from an order of a Divisional Court of the Queen's Bench Division (Moses LJ and Collins J) of 16 May 2014 whereby the court granted judicial review of the determination of the defendant tribunal directing the respondent to pay to the appellant a sum of £27,521.50 in respect of her costs of successfully defending disciplinary proceedings brought against her. The court ordered that the appellant's costs should be assessed in that sum on the basis of a rate of £60 per hour, as opposed to the £120 per hour allowed by the tribunal. The court also ordered the appellant to pay 60% of the respondent's costs of the judicial review proceedings.
The substantive issue, both in the Divisional Court and here, is as to the hourly rate to be allowed on assessment. The appeal is brought with permission granted by Jackson LJ by order of 18 December 2014. The appellant also appeals against the Divisional Court's costs order.
The background facts can be shortly stated. The respondent instituted disciplinary proceedings against the appellant in respect of alleged professional misconduct, the nature of which is immaterial to the present appeal. It is, however, relevant to note that by its decision of 31 January 2012 (with written reasons dated 6 September 2012) the tribunal (Chairman, Mr J Hendy QC) dismissed the charges brought against the appellant. In respect of two such charges, the tribunal concluded, after preliminary hearing of an application by the appellant to strike out the charges, that two of them had no reasonable prospects of succeeding; it struck them out, and in respect of a third charge, the respondent (upon invitation by the tribunal) decided not to proceed. In its written reasons for its conclusions, the tribunal observed (inter alia) "that these proceedings, which we consider should never have been brought, have taken an inordinate amount of time, particularly on the part of the panel but no doubt on the part of the parties too".
The tribunal made an order for costs against the respondent. It did so having considered and applied the decision of this court in Baxendale-Walker v Law Society [2007] EWCA Civ 233 and the case of City of Bradford MBC v Booth [2000] Crown Office Digest 338 (Lord Bingham CJ)
In reviewing the proceedings as a whole, in the light of the principles emerging from those cases, the tribunal said (at paragraph 93),
"It is our view that the BSB were unreasonable in proceeding with charges 1 and 3 against Ms Sivanandan because in our view they had no reasonable prospect of success. Had those charges been properly considered at the outset, it should have been apparent that they had no reasonable prospect of success. We take the view that no reasonable Committee considering the evidence that had been laid before us could have come to any other conclusion. So that conclusion should have been appreciated when the evidence potentially to sustain the charges was to hand."
A little later, in respect of charge 2, the tribunal said this:
"97. when invited to reconsider the matter in the light of our findings that charges 1 and 3 were unsustainable, the BSB withdrew charge 2. Given that the BSB must have necessarily concluded (rightly as we think) that charge 2 did not warrant pursuit in the absence of charges 1 and 3, we conclude that it too should not have been laid in the first place and the decisions to initiate and to continue it were as unreasonable and as unsound as the decisions to lay and pursue charges 1 and 3."
Thus, the tribunal made its order for costs in the appellant's favour but directed that the assessment should be made by an experienced costs counsel. Mr Andrew Post QC was duly appointed to make the assessment, which he made on the basis of a rate of £120 per hour in respect of the appellant's time expended. The number of hours work claimed (166 hours) was not disputed. However, as pointed out to us by Mr Brennan QC for the respondent, the respondent did not concede that it was appropriate to allow to the appellant an hourly rate, such as that sought, for such an extensive number of hours. The argument was that a legal representative charging at such a rate would not have required the 166 hours which it was admitted the appellant had in fact spent on the case.
The costs provision which the tribunal had to apply is to be found in Rule 31 of the Bar's Disciplinary Tribunal Rules 2009 in these terms:
"(1) A Disciplinary Tribunal shall have power to make such Orders for costs, whether against or in favour of a defendant, as it shall think fit.
(2) Upon making such an Order a Disciplinary Tribunal shall either itself determine the amount of such costs or appoint a suitably qualified person to do so on its behalf."
Before Mr Post, and indeed throughout, it seems to have been common ground that the Civil Procedure Rules ("CPR") are not directly applicable. At times the appellant has contended that those rules are irrelevant to the proceedings. She seems to have accepted before Mr Post that they were persuasive but not binding. In opening the judicial review application before the Divisional Court the respondent suggested, on the basis that this is what it said Mr Post would have done if he had felt it was open to him, that the appropriate rate was the "litigant in person rate", under the CPR regime, of between £9 and £18 per hour: see the transcript of the hearing below at 18B-C (p.249 of the appeal bundle). The Divisional Court held that the CPR "were not even persuasive", a view with which I respectfully agree. Disciplinary proceedings of the Bar and ordinary civil litigation give rise to different considerations when it comes to costs and the rules are different.
That view of the matter is not seriously in issue before us. The only issues that remain to be resolved are whether the Divisional Court was entitled to quash Mr Post's determination of the £120 per hour rate and then to substitute its own rate of £60 per hour.
Mr Post reached his conclusion by following the decision of Ryder J (as he then was) as Visitor of the Inns of Court in Miller v Bar Standards Board (unreported) (January 2012).
In Miller, Ryder J noted that it was common ground before him that the CPR were not binding in these cases, but had "strong persuasive value" – a point upon which, as I have indicated, the Divisional Court and I take a different view. It was noted that in that case Mr Miller had carried out work on his own behalf using his professional legal skills and that the question was whether he was entitled to be remunerated for such legal work as if he were a barrister or solicitor acting in a professional legal capacity for another, i.e. for reward. Ryder J concluded that he was so entitled. He so found upon the basis of the common law, before the enactment of the CPR, as stated by this court in London Scottish Benefit Society v Chorley (1884) 13 QBD 872. He cited the following passages from that case. Brett MR said this (at pp. 875–6):
"I should have thought that a person wrongfully brought into litigation ought to be indemnified against the expenses to which he is unjustly put; but there cannot be a perfect indemnity, because it is impossible to determine how much of the costs is incurred through his own over-anxiety. When an ordinary party to a suit appears for himself, he is not indemnified for loss of time; but when he appears by solicitor, he is entitled to recover for the time expended by the solicitor in the conduct of the suit. When an ordinary litigant appears in person, he is paid only for costs out of pocket. He cannot himself take every step, and very often employs a solicitor to assist him: the remuneration to the solicitor is money paid out of pocket; but for loss of time the law will not indemnify him. When, however, we come to the case of a solicitor, the question must be viewed from a different aspect. There are things which a solicitor can do for himself, but also he can employ another solicitor to do them for him; and it would be unadvisable to lay down that he shall not be entitled to ordinary costs if he appears in person, because in that case he would always employ another solicitor. If a solicitor does by his clerk that which might be done by another solicitor, it is a loss of money, and not simply a loss of time, because it is work done by a person who is paid for doing it. It is true, however, to say that the costs of a solicitor appearing in person must be taxed differently from those of an ordinary litigant appearing by a solicitor.
The unsuccessful adversary of a solicitor appearing in person cannot be charged for what does not exist, he cannot be charged for the solicitor consulting himself, or instructing himself, or attending upon himself. The true rule seems to be that when a solicitor brings or defends an action in person, he is entitled to the same costs as an ordinary litigant appearing in person, subject to this restriction, that no costs which are really unnecessary can be...
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