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
Before:
LORD JUSTICE McCOMBE
and
LADY JUSTICE KING
Between:
R (BAR STANDARDS BOARD) | Respondent/ Claimant |
- and – | |
DISCIPLINARY TRIBUNAL OF THE COUNCIL OF THE INNS OF COURT | Defendant |
-and- | |
NATASHA SIVANANDAN | Interested Party/ Appellant |
The Appellant in Person
Timothy Brennan QC (instructed by Bar Standards Board) for the Respondent
Hearing date: 11 May 2016
Judgment
Lord Justice McCombe:
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 recovered. Of this kind are the costs of instructions and attendances.”
Ryder J then quoted Bowen LJ (at 876-7):
“His meaning [i.e. Lord Coke’s in his Commentary] seems to be that only legal costs which the Court can measure are to be allowed, and that such legal costs are to be treated as expenses necessarily arising from the litigation and necessarily caused by the course which it takes. Professional skill and labour are recognised and can be measured by the law; private expenditure of labour and trouble by a layman cannot be measured. It depends on the zeal, the assiduity, or the nervousness of the individual. Professional skill, when it is bestowed, is accordingly allowed for in taxing a bill of costs; and it would be absurd to permit a solicitor to charge for the same work when it is done by another solicitor, and not to permit him to charge for it when it is done by his own clerk. The question before us does not depend on the privileges of a solicitor. My judgment is the same as that of the Master of the Rolls; the costs claimed, subject to the exceptions which have been mentioned, ought to be allowed, because there is an expenditure of professional skill and labour.”
Finally, there was the following from Fry LJ:
“I am of the same opinion. This is not a question as to a solicitor’s privilege. I think that the conclusion at which we have arrived will be beneficial to the public, because if the rule were otherwise a solicitor who is party to an action would always employ another solicitor, and whenever he is successful he would recover full costs; whereas under the rule of practice laid down by us, as solicitor who sues or defends in person will be entitled, if he is successful, to full costs, subject to certain deductions, of which his unsuccessful opponent will get the benefit.”
However, Ryder J then returned to the CPR and noted that the costs position for litigants in person was governed by CPR r.48.6. He referred to Malkinson v Trim [2002] EWCA Civ 1273, [2003] 1 WLR 463 and then said that the case…,
“…clarified two points: first, that the London Scottish principle that a solicitor who successfully defended in person an action brought against him was entitled to the same costs as if he had employed a solicitor extended to work done on a solicitor’s behalf by the solicitors’ [sic: “solicitor’s”] firm in which he was a partner; and second, that the principle survived the introduction of the CPR”.
Ryder J did not draw attention to the distinction, pointed out by Chadwick LJ in that case, between a solicitor litigant working on his litigation through the firm in which he is a partner (on the one hand) and a solicitor litigant acting for himself in his own time (on the other). As to this distinction Chadwick LJ said (at p.473B-E):
“One effect of CPR r. 48.6(6)(b), read in conjunction with section 52.5 of the Practice Direction, is that there is now more clearly recognised a distinction between the solicitor litigant who provides, in connection with his own litigation, professional skill and knowledge in the course of his practice as a solicitor-that is to say, who “is represented…by himself in his firm name”-and the solicitor litigant who provides skill and knowledge in what might be described as “his own time”-that is to say, outside the course of his practice as a solicitor and (typically) outside the office. This latter is treated as a litigant in person for the purposes of CPR r. 48.6, and so is subject to the restrictions imposed by that rule, including the two-thirds restriction imposed by paragraph (2). The former is not. Nor is there any reason, consistent with the need to provide an indemnity, why he should be. Further, there is no reason, consistent with the need to provide an indemnity, why he should not recover the cost of providing professional skill and knowledge through employees of his practice.”
This distinction was noted by Moses LJ in the present case in paragraph 15 of his judgment and he concluded (and, in this respect, I agree) that Ryder J’s interpretation of the CPR was wrong. Moses LJ said this:
“Contrary to that which appears in Ryder J’s judgment in Miller, followed, apparently reluctantly by Mr Post QC, a barrister acting on his own behalf is not entitled to costs representing the expenditure of his own skill and time under CPR 48.6. Since he is not a solicitor coming within the Practice Direction there is no means by which he can avoid that conclusion and claim costs unless he employs someone else to act on his behalf. Accordingly, I conclude that Ryder J’s interpretation of the CPR was wrong. It follows that the application of CPR 48.6, should have led to the conclusion that the interested party was not entitled to charge for the expenditure of her own professional skill and judgement.”
The result of the CPR, if they had applied, was that someone in the appellant’s position would simply be a litigant in person to whom litigant in person rates would have applied.
In Miller’s case, Ryder J continued as follows:
“20. The Appellant is a barrister. A barrister, like a solicitor, is in a special position when acting in person in that “he does not need to employ others to provide professional skill and knowledge in the conduct of litigation” such as the preparation of witness statements, preparing court bundles, schedules of costs and the like. The barrister, like the solicitor, “can provide that skill and knowledge himself”. There is no difficulty in the court measuring what it has cost the Appellant to do the relevant work himself. The measure is what it would reasonably have cost him had he employed a solicitor (or another barrister) to do the legal work for him for reward (see CPR r.48.6(3)(a)). Were these proceedings under the CPR then the Appellant as a litigant in person would be entitled to the amount of costs for which he can prove financial loss (CPR r.48.6(4)(a)). 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 has done for himself. ”
He concluded, therefore, that Mr Miller was entitled to indemnity on the basis of notional remuneration he would have had to pay to another lawyer to do the work for him. However, Ryder J found that, were the CPR to apply, costs would be limited to two-thirds of the amount which would have been allowed if he had been represented by a legal representative: i.e. the limit imposed under the then CPR r. 48.6(2). He then adopted the rates for a solicitor practising in Central London with 4 to 8 years post-qualification experience (set out in the Guideline Figures for the Summary Assessment of Costs (£242) and awarded costs at a rate of £160 per hour.
In reaching his own decision, Mr Post said that he found the decision in Miller difficult to reconcile with the decision in Malkinson v Trim. However, he took the view that he was bound to follow Miller. He said this:
“However I am sitting as an assessor in Council of the Inns of Court proceedings. Appellate control of these proceedings is vested in the Visitors. The decision of a Visitor appears to me to be directly binding on me. It was not suggested by the Bar Standards Board that there was any ground on which I was entitled to decline to follow the Miller decision: rather the Board invited me to distinguish the case on the facts, and, as set out above, I cannot accept the proposed basis for distinguishing the case. In those circumstances I have no alternative but to follow the decision of Ryder J in Miller v Bar Standards Board.”
Accordingly, he found that “applying Miller” the appellant was entitled to recover her costs of time at her claimed rate of £120. As can be seen from her written submissions before Mr Post (paragraph 48) this was based upon a sum that a solicitor working in Central London with 3-4 years post-qualification experience would charge her for representation, i.e. £180-250 per hour, reduced by one-third to £120.
The Divisional Court concluded that Mr Post fell into error by his belief that he was bound to follow the decision in Miller. Moses LJ said that if the CPR had applied those rules pointed in the opposite direction from the one applied by Mr Post and by Ryder J in Miller. The court then asked itself the question how it should dispose of the case. It did not say expressly that Mr Post, having wrongly felt himself bound by the decision in Miller, simply failed to exercise his own discretion at all. However, in paragraph 16 of the judgment and the passage which I next cite, it appears to me that Mr Brennan was right in his submission that the court did accept implicitly that Mr Post had failed to exercise his wide discretion conferred upon him by the Regulations. The Divisional Court decided that his determination had to be quashed accordingly.
The Divisional Court’s conclusion expressed by Moses LJ was this:
“18. After all, if a defendant barrister acting in person is going to be deprived of costs assessed on a London Scottish Benefit Society basis then the barrister will employ another barrister or solicitor and barrister, and claim his costs in the normal way. The successful barrister may lose a proportion, or perhaps, in an extreme case, all of those costs, if he or she has brought the proceedings on themselves. But otherwise, it seems to me that to apply CPR 48.6(6) is merely an invitation to incur extra costs which may be saved where a barrister acts on his or her own behalf. In those circumstances, and in the absence of any particular reason given by Mr Post QC as to why the CPR should be persuasive, the correct basis of assessing these costs is in accordance with the Bar Standard Board’s own rules, namely, to award such costs as the tribunal thinks fit.
“19. There was, I should emphasise, no dispute as to the number of hours in respect of which the interested party could claim. Nor, in the absence of CPR 48.6, is there any basis for saying that the expenditure of a barrister’s own time and skill should not be compensated in circumstances where that barrister is successful. I bear well in mind the important public duty which the Bar Standards Board fulfils, but where in general should the costs lie in those cases where a barrister has been wrongly charged, has not brought the proceedings on himself, and where the charges have been dismissed? Should the cost fall on the barrister, or on the Bar at large? It seems to be there can only be one answer to that question and that the financial loss the barrister has incurred includes the expenditure of his own professional skill.
20. Mr Brennan QC argued that this particular interested party had suffered no loss because she was no longer in practice. I do not agree. The Bar Standards Board has agreed the number of hours she had spent in defending the unjustified charges against her. In those circumstances, she is entitled to the costs represented by her expenditure of professional skill. I do not think that they should be assessed at anything like the amount which Mr Post QC felt bound to award, namely, costs at the rate of £120 per hour. In my view, a reasonable figure would be £60 per hour, taking into account the fact that the interested party was not practising at the time. The hours seem extraordinarily long, but they, as I have already said, have been agreed.”
In my respectful judgment, that conclusion, leaving aside for the moment the rate fixed, was entirely correct. If the CPR do not apply, the best guidance for the tribunal in assessing costs remains the common law as stated in the London Scottish case. A similar view was taken by Mitchell J in Khan v the Lord Chancellor [2003] 1 WLR 2385, especially at paragraphs 52 and 53 in which he held that a barrister who successfully defended himself in criminal proceedings was entitled to recover in costs for work done by him in the exercise of his professional skill, within the principle established by the London Scottish case.
The appellant argued before us that the decision in Miller was correct and that Mr Post had been correct to follow it. Alternatively, she argued that even if any part of Mr Post’s decision was wrong in its reasoning, we should not set it aside because he had reached a correct conclusion as to hourly rate, or at least one that was open to him. She submitted that this court should not interfere. In this latter respect she relied upon the decision in Jafri v Lincoln College [2014] EWCA Civ 449, [2015] QB 781, a case concerning the respective roles of the Employment Tribunal and of the Employment Appeal Tribunal at paragraphs 21-24. The tenor of those paragraphs can be summarised by the following extracts from the judgment of Laws LJ in paragraphs 21 and 23:
“21. It is not the task of the Employment Appeal Tribunal to decide what result is “right” on the merits. That decision is for the employment tribunal, the industrial jury. The appeal tribunal’s function is (and is only) to see that the employment tribunals’ decisions are lawfully made. If therefore the appeal tribunal detects a legal error by the employment tribunal, it must send the case back unless (a) it concludes that the error cannot have affected the result, for in that case the error will have been immaterial and the result as lawful as if it had not been made; or (b) without the error the result would have been different, but the appeal tribunal is able to conclude what it must have been. In neither case is the appeal tribunal to make any factual assessment for itself, nor make any judgment of its own as to the merits of the case; the result must flow from findings made by the employment tribunal, supplemented (if at all) only by undisputed or indisputable facts. Otherwise, there must be a remittal…
23. This view of the learning simply reflects the different roles of the employment tribunal and the Employment Appeal Tribunal: industrial jury and legal supervisor. It sits also with the approach of the High Court in other statutory appeals on law only, and in judicial review, to the question what relief should be granted when it finds that a subordinate decision is flawed by error of law. I venture to think that Sir John Donaldson MR in the Dobie case, despite his use of the phrase “plainly and unarguably right” (which has certainly been applied in some of the other cases, including the Sud case), had situation (a) in mind. Moreover his judgment in O’Kelly v Trusthouse Forte plc [1984] QB 90, 126 articulates the conventional position as regards the relief to be granted in an appeal on law only:
“The appeal tribunal can correct errors of law and substitute its own decision in so far as the [employment] tribunal must, but for the error of law, have reached such a decision. But if it is an open question how the [employment] tribunal would have decided the matter if it had directed itself correctly, the appeal tribunal can only remit the case for further consideration.”
As I have indicated, I accept Mr Brennan’s submission that Mr Post simply did not exercise the independent discretion conferred upon him by the Regulations, having wrongly found that he was bound by the decision in Miller. In my judgment, while Ryder J came close to applying the principles from the London Scottish case in paragraph 20 of his judgment, he then applied CPR r.48.6(3)(a) to measure the recoverable cost. That was a provision that did not apply to Bar disciplinary proceedings.
Moreover, I take the view that the passages from the judgment in Jafri, relied upon by the appellant, do not support the argument that the court could conclude that Mr Post, if he had exercised his own discretion, would necessarily have reached the same conclusion as to the proper rate of charge for the appellant’s work in this case.
Where the lower tribunal has made an error of law, the reviewing court can only remit the case unless the specific identified circumstances apply. In the present case, I find it difficult to see how the court could have said that the decision reached by Mr Post would inevitably have been the same, if he had exercised his own discretion properly.
The quoted passages from Jafri are directly relevant to the next main point which the appellant made. She submitted (in the alternative to her main submission) that the Divisional Court was wrong to have assessed the hourly rate themselves and, indeed, she argued that the court had no jurisdiction to do this and was bound by statute to remit the matter to the tribunal. In this respect, the appellant relied upon section 31(5) and (5A) of the Senior Courts Act 1981 which provides as follows:
“(5) If, on an application for judicial review, the High Court quashes the decision to which the application relates, it may in addition-
(a) remit the matter to the court, tribunal or authority which made the decision, with a direction to reconsider the matter and reach a decision in accordance with the findings of the High Court, or
(b) substitute its own decision for the decision in question.
(5A) But the power conferred by subsection (5)(b) is exercisable only if-
(a) the decision in question was made by a court or tribunal,
(b) the decision is quashed on the ground that there has been
an error of law, and
(c) without the error, there would have been only one decision which the court or tribunal could have reached.”
The further problem that arises here, however, is that the court reached its own determination of the £60 per hour rate by the express agreement of the parties at the hearing. The appellant was then represented by leading counsel who, as is clear from the transcript, agreed to that course on the appellant’s behalf having taken her express instructions: see the passages at pp. 70 and following of the transcript (appeal bundle p.299), especially at p. 70G-71A (appeal bundle pp.301-2).
Mr Brennan raised an argument in writing before us that the appellant was now estopped from contending (as she now does) that the Divisional Court had no jurisdiction to do other than remit the case to the tribunal and that it had been in error in accepting the invitation of the parties to fix an alternative rate. He submitted that the appellant was, therefore, bound by her agreement that the court should fix an appropriate hourly rate.
In oral submissions, however, Mr Brennan was less enthusiastic about that argument and very fairly accepted that the court might find itself in difficulty in concluding that jurisdiction could be conferred upon the Divisional Court by the parties’ agreement or by estoppel, in the face of an express statutory provision such as section 31 of the 1981 Act. That potential jurisdictional difficulty was reflected in an open letter, written by the respondent to the appellant in June 2015, offering expressly to agree to the case being remitted to the tribunal for further consideration. The letter is relevant, if at all, to costs.
In my judgment, Mr Brennan was correct to accept the reality that it was not open to the Divisional Court to fix a new rate of charge itself, even by agreement. In the face of the section, it simply did not have the material to conclude that there would have been only one decision that the tribunal would have reached and, therefore, section 31 required that the matter be remitted to the tribunal.
Subject to one further point, it seems to me, therefore, that we must allow the appeal to the limited extent only of ordering that the assessment of costs be remitted to the tribunal to make its own determination in accordance with its own rules, namely to award such costs as it thinks fit. In that exercise, no doubt the tribunal would bear in mind the principles advanced by Moses LJ in this case in paragraphs 18 and 19 of his judgment (with which I respectfully agree), concluding with the statement that the financial loss which the barrister has incurred includes expenditure of her own professional skill: see also paragraph 19 above.
The one point that remains is Mr Brennan’s argument that the court should consider in this case setting aside the extension of time granted to the appellant in which to apply for permission to appeal and/or the grant of permission itself. The argument is that, in applying for permission to appeal out of time, in part at least upon the basis that the Divisional Court had exceeded its jurisdiction in setting a new hourly rate itself, the appellant failed to inform this court sufficiently clearly that the appellant had herself expressly agreed to the court fixing a new rate in the event that it found that Mr Post’s decision had to be quashed. It is submitted that the appellant failed in this respect to comply with her duty of candour in presenting an application for permission to appeal.
In granting permission to appeal, Jackson LJ gave the following reasons:
“The grounds of appeal have a real prospect of success. Therefore I feel constrained to grant permission. BUT the sums in issue are modest and the costs of this appeal will be substantial. The parties should take urgent steps to resolve this matter through the Court of Appeal Mediation Scheme (unless direct negotiations succeed in the near future).”
Mr Brennan submitted that if it had been made clear to Jackson LJ that part of the appeal was to be based upon the argument as to the lack of jurisdiction in the Divisional Court to fix a new hourly rate, even though the appellant had expressly agreed that it should do so, the Lord Justice might well have been inclined to refuse permission or at least to refuse the extension of time sought. He argued that the court would be unlikely to exercise its discretion to extend time in a case of this type where the party seeking to appeal had expressly agreed to the course that it had taken in fixing the new rate. Mr Brennan said that, if the new procedure for statements by respondents at the permission stage in this court had been available at the relevant time, the respondent would certainly have pointed out to the court that the appellant had expressly agreed to the course taken by the lower court and that the rate had been fixed accordingly.
Mr Brennan argued that the court should now consider whether to revoke the permission to appeal for breach of the obligation of candour in presenting the permission application. This point was made initially in paragraph 22 of Mr Brennan’s skeleton argument on the appeal, dated 8 June 2015. He also relied in oral argument on the subsequent, very recent case in this court of Khan v Secretary of State for the Home Department [2016] EWCA Civ 416.
I have considerable sympathy with this submission and consider that, had Jackson LJ known of the full circumstances in which the Divisional Court had fixed the £60 rate, he might very well have declined to grant the extension of time sought or might have refused permission to appeal.
However, as Mr Brennan also fairly pointed out the appellant’s agreement to the rate being fixed by the court was obliquely referred to in paragraph 7(2) of the grounds of appeal. While, in my judgment, the matter should have been pointed out more clearly in the application for permission to appeal, a breach of the duty of candour is not sufficiently obvious for us to take the course that Mr Brennan invites, particularly as no specific application for the revocation of permission to appeal is before the court.
In the end, therefore, while I would reject the appellant’s principal contention that this court should allow the appeal, quashing the Divisional Court’s order and restoring the decision of Mr Post. I consider that we have no alternative but to allow the appeal to the very limited extent only of remitting the matter to the tribunal to fix the costs to be awarded in accordance with the Disciplinary Tribunal Regulations, regulation 31.
The appellant also appeals against the Divisional Court’s order for costs. As already mentioned, it was ordered that the appellant should pay 60% of the respondent’s costs of the judicial review proceedings. The appellant submits that the decision was wrong and was not supported by reasons.
I can address the “reasons” challenge first, and shortly. It is quite clear from the documents before us that both parties before the Divisional Court advanced written submissions on costs. These were exchanged between the parties. The court favoured, but not to their full extent, the submissions advanced by the respondent. In relation to short arguments on costs of this nature, there was no obligation upon the court to say more than it did by way of reasons. It is commonplace where arguments as to costs are debated for the parties’ submissions to be advanced in short terms, either orally after judgment is delivered or (as here) in written submissions. The court considers what has been said and makes a broad assessment of the relative arguments that it has heard and makes up its mind on the basis of the arguments advanced. There is no need to say more. The court’s reasons are obvious from a consideration of the arguments advanced and the order that the court makes.
On the substance of the matter, as Mr Brennan argues in his skeleton argument, it is easy to see how the Divisional Court reached its conclusion. The respondent had contended that it had won the proceedings by securing the quashing of Mr Post’s determination and a reduction in the rate claimed. However, it had argued that the CPR should apply by analogy and that the litigant in person rate should be awarded, but had lost on that point. A partial costs order in favour of the respondent was well within the broad discretion of the court in these circumstances.
For these reasons, I would dismiss the appeal against the costs order below.
My overall conclusion, therefore, is that the appeal from the Divisional Court’s order should be dismissed save that it should be allowed to the very limited extent only that paragraph 2 of the order below should be varied to an appropriate extent. We should order that the matter be remitted to the tribunal to fix an appropriate hourly rate for the time expended by the appellant in order to assess the costs of the proceedings before that tribunal in accordance with the principles stated in this judgment. Paragraphs 1 and 3 of the order below should remain undisturbed. For my part, however, noting again the terms in which Jackson LJ granted permission to appeal; I express the hope that, even at this late stage, the parties might agree a summary and cost-free method of resolving the issue of the proper hourly rate by a mutually respected mediator.
Lady Justice King DBE:
I agree.