R (Council for the Regulation of Healthcare Professionals) v Health Professions Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE JACKSON |
| Judgment Date | 30 March 2006 |
| Neutral Citation | [2006] EWHC 890 (Admin) |
| Date | 30 March 2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5718/2005 |
[2006] EWHC 890 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
MR JUSTICE JACKSON
CO/5718/2005
MS JENNI RICHARDS (instructed by Messrs Bevan Brittan) appeared on behalf of the CLAIMANT
MR PARISHIL PATEL (instructed by Messrs Bircham Dyson Bell) appeared on behalf of the 1st DEFENDANT
This is an application for costs. The facts giving rise to this application are as follows. The second respondent, Mr Simon Harrison, is a physiotherapist. In 2004 Mr Harrison was working as a locum physiotherapist at the Wrexham Maelor Hospital. Mr Harrison behaved inappropriately whilst working at that hospital. The first respondent in these proceedings, the Health Professions Council, brought disciplinary proceedings against Mr Harrison. Those proceedings came before the Conduct and Competence Committee of the first respondent and that committee is generally referred to as the "CCC".
The findings of the CCC were that Mr Harrison had committed the following misconduct whilst employed at Wrexham Maelor Hospital. (1) On a date between 28th June and 5th July 2004 he put his arm around Miss A and put her head on to his shoulder. (2) On a date between 28th June and 5th July 2004 he put his arms around Miss A, hugging her and placing his head on her chest. (3) On 5th July he (a) outstretched his hands towards Miss A's breast, (b) made various inappropriate comments of a sexual nature to Miss A in front of a patient and (c) made inappropriate comments in relation to a patient's genitalia. (4) On a date between 28th June 2004 and 5th July 2004 he attended at work smelling of alcohol. (5) On a date between 28th June 2004 and 5th July 2004 he attended at work smelling of alcohol. (6) On 5th July 2004 he attended at work smelling of alcohol.
The penalty imposed by the CCC was a direction that the registrar of the first respondent should annotate the register with a caution in respect of Mr Harrison for a period of three years. The Council for the Regulation of Healthcare Professionals took the view that the penalty imposed and the disposal of that disciplinary matter was unduly lenient and did not properly protect the public interest. Accordingly, the Council for the Regulation of Healthcare Professionals brought an appeal against the decision of the CCC pursuant to Section 29 of the NHS Reform and Health Care Professions Act 2002. The appeal was launched by a notice of appeal which is sealed and dated as received in the Administrative Court Office on 8th August 2005. That date was three days within the time limit for the CRHP to bring such proceedings. There was no letter before action sent by the Council for the Regulation of Healthcare Professionals to the first respondent. There was, however, a phone call which preceded the commencement of proceedings.
The appellant's notice was served on the first respondent by a letter dated 10th August. On 19th August a skeleton argument, prepared by the appellant's counsel, was sent to the solicitors for the first respondent. Thereafter there was some debate in correspondence and, by a letter dated 5th September 2005, the solicitors for the first respondent indicated in principle its agreement to compromise. There was some delay, perhaps understandably, before the second respondent, Mr Harrison, accepted this position, but in due course he did so and a consent order was drafted along the lines that had been envisaged in the letter from the solicitors dated 5th September 2005. That consent order, which this court has approved and made today, provides as follows:
"1. The Appellant's appeal is allowed and the decision of the First Respondent's Conduct and Competence Committee ("CCC") on 16 June 2005 to caution the Second Respondent is quashed.
"2. The matter is remitted to the same CCC for further consideration and redetermination of sanction in line with the following directions:
(1) The CCC shall have regard to the Appellant's Notice, the Appellant's skeleton argument and any other submissions offered by the First and Second Respondents.
(2) The CCC in giving its new determination shall set out its full reasoning as to why its decision (whatever it may be) is appropriate having regard to the protection of the public;
"3. Costs to be agreed or ordered".
At the hearing today, the appellant, that is the Council for the Regulation of Healthcare Professionals, seeks an order that the first respondent, the Health Professions Council, do pay the appellant's costs up to 5th September 2005. No application for costs is made against the second respondent. This seems to me to be entirely reasonable in all the circumstances of this case, not least the fact of the second respondent's means and the fact that some time ago he has consented to this appeal being allowed.
The first respondent opposes the application for costs on a number of grounds. The first argument deployed by the first respondent is that, although the first respondent has consented to this appeal being allowed and the matter being redetermined by the CCC, nevertheless there has been no judicial determination, after argument, that the appeal should succeed. Furthermore, says Mr Patel on behalf of the first respondent, it may very well be that if there had been a full contest the appeal would have failed but there were sensible reasons, not least the saving of costs, which made it appropriate for this matter to be resolved by consent. Therefore, says Mr Patel, the proper order is no order as to costs.
Mr Patel cites two well-known authorities on the costs points. The first is the decision of Mr Justice Simon Brown in R v Liverpool City Council ex parte Newman and Others, 13th July 1992. The second decision which Mr Patel cites is Boxall v Mayor and Burgesses of the London Borough of Waltham Forest, 21st December 2000. It seems to me that the statements of principle in Boxall reflect and build upon the reasoning in the Liverpool City Council case. I shall therefore limit myself to setting out the crucial passage in Boxall which sets out the principles upon which Scott Baker J proceeded in that case.
"Having considered the authorities, the principles I deduced to be applicable are as follows:
(i) the court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.
(ii) it will ordinarily be irrelevant that the Claimant is legally aided;
(iii) the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost;
(iv) at each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.
(v) in the absence of a good reason to make any other order the fall back is to make no order as to costs.
(vi) the court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage."
Mr Patel urges upon me the wisdom of bodies such as the first respondent conceding an appeal where there are properly arguable grounds and allowing the matter to be redetermined by the relevant disciplinary committee rather than contesting the appeal in this court through to a conclusion. In the circumstances of this particular case, having reviewed the material before me, I have come to the conclusion that, if this appeal had proceeded, really it was bound to succeed. Therefore, on the facts of this case, I reject Mr Patel's first argument.
There is, however, a point of principle which arises from his first argument which may need to be considered on a future occasion: is it open to a regulatory body to concede an appeal against the decision of its independent disciplinary committee in circumstances where (a) the disciplinary decision was favourable to the accused professional person and (b) the regulatory body considers that there are or may be good grounds for resisting the appeal? This is not an issue which arises for decision in this case. However, it is an issue which may arise in other cases when an argument based upon the Boxall line of authorities is advanced. It should be borne in mind that this court can only make an order quashing the decision of a disciplinary committee, even by consent, if this court is satisfied that it is proper to make such an order and allow an appeal brought by the Council for the Regulation of Healthcare Professionals; see for example R (Council for Regulation of Healthcare Professionals v (1) General Medical Council and (2) Rajeshwar) [2005] EWHC 2973 (Admin).
I now come to the second argument advanced by Mr Patel on behalf of the first respondent. This argument is that the claimant failed to send any letter before action. If matters had been properly ventilated in correspondence, a great deal of costs could have been saved and the proceedings in this court could have been reduced to a mere formality. As it is, the first respondent did not know what case it had to meet until after proceedings had been brought. In relation to this...
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