Davies, R (on the application of) v Royal College of Veterinary Surgeons

In coming to my conclusion on costs I have taken into account the representations received from Mr Davies on 14 and 22 November 2015 and the representation received from the defendant dated 18 November 2015.

The general rule in relation to costs is that the unsuccessful party in a case pays the costs of the successful party: see CPR 44.2(2). However under CPR 44.2(2)(b) a court has a general discretion in respect of costs and rule 44.2(4) states that when considering which cost orders to make, the court should have regard to all the circumstances including “the conduct of the parties” see 44.2(4)(a) and “any admissible offer to settle made by a party which is drawn to the courts attention” at 44.2(4)(c).

On ground two the claimant succeeded in obtaining the quashing of the decision of 17 February 2015 and referral of his complaint about Ms Walsh to the preliminary investigation committee for consideration. However, the defendant had offered in a letter dated 22 July 2015 which was sent “without prejudice save as to costs” that very relief. As I stated in paragraph 58 of my judgment the court could offer no more by way of relief on that ground.

The issue then was: what should be the position in relation to the costs on the part of the defendant after a period during which it was reasonable for the claimant to consider the offer made by the defendant? The defendant submitted that that was a period of some 14 days after the making of its offer. The defendant claimed, in relation to the period after 5 August, the sum of £14,304. It accepted that, arguably, a small amount of that time was spent on grounds one and three and so a 10% deduction should be made to its total bill to reflect that.

The claimant said that he had misgivings about the offer made in the letter dated 22 July 2015 from the defendant but beyond seeking some assistance from the Citizens Advice Bureau he did not seek prompt advice from them nor any advice from legal advisors.

Although the defendant on 4 September 2015 wrote to the claimant suggesting that a fair costs outcome would be for each party to bear its own costs on the basis of any costs that the claimant was entitled to would be more than offset by the costs the defendant would seek from him, and that was their offer, the claimant insisted on continuing with the proceedings. His conduct in so doing has to be seen also in the context that this was a claim which was commenced without compliance with the pre-action protocol. Although the claimant says that through his correspondence, which has at times been prolific, he has to all intents and purposes complied with that protocol, there was nothing which was formally put to the defendants prior to commencement of the proceedings to enable them to set out their response to the claim as finally formulated by the claimant.

In those circumstances I am of the view that the claimant, as the successful party on ground two, is entitled to his reasonable costs up to and until there was a reasonable offer on the part of the defendant to compromise that ground and a reasonable time on the part of the claimant in which to consider that offer. In considering what was a reasonable time I take into account all the circumstances of the case including the conduct on behalf of the claimant. I can see no reason why, nor was any put forward, the claimant could not seek advice from either the Citizens Advice Bureau or independent legal advice within a period of 14 days of receipt of the offer in July. In those circumstances I accept the submission on the part of the defendant that it is not unreasonable for a date of 5 August 2015 to be taken as the basis of a cut-off point by which the defendant ought to have accepted their offer.

I entirely accept that by 5 September the defendant was offering that there should be no order for costs in an attempt to compromise the case. However, the claimant took the decision to press on and, again, although he is quite entitled to do so, there are costs consequences as a result of that decision.

In the circumstances I conclude that it is not unreasonable for the claimant to pay the defendant’s costs from the date after which it was reasonable for him to have accepted the defendant’s offer subject to a reduction to take into account the amount of time that it was likely was spent in dealing with grounds one and three. Although the defendant contended that a reduction of 10% would cover that amount that seemed to me to be insufficient. In the exercise of my discretion I therefore made a 15% reduction in relation to the remainder.

In the circumstances I order that the claimant is entitled to his reasonable costs up until 5 August but that thereafter he is liable to pay the costs of the defendant subject to a reduction on 15% of the costs that they claim.

It is of note that the defendant offered at an early stage that Mrs Hill would not sit on the preliminary investigation committee in respect of his complaint against Ms Walsh (see letter of 28 July 2015). The claimant did not raise his objections to any other person upon that committee prior to the court hearing. At the hearing it was accepted in principle that Mrs Bedwell would also not be on the committee provided that it was clear that she has previously been substantially involved in the claimant’s complaints and that it was possible to exclude her without causing insurmountable difficulties. The same applied in relation to Mrs Thompson. At the end of the day the defendant is responsible for the composition of the preliminary investigation committee taking into account issues raised on apparent bias and the history of the case. Provided it exercises its discretion reasonably, and there is no reason to suspect that it will not, that was no reason to reject the offer made by the defendant.

As to requiring the preliminary investigation committee to interview Ms Walsh and to make further enquiries that is again a matter, within the stage four process, for the discretion of the preliminary investigation committee. Provided that is done in accordance with their published protocol for the investigation of complaints and, again, there is no basis on the evidence before the court to hold that that will not be done. That also provides no reason for not accepting the offer made by the defendant.

As to the claimant’s residual concern about his systemic problems in the defendant’s complaint process I deal with that in paragraph 64 of the substantive judgment.

None of the matters raised by the claimant whether in his compendious written submissions for the hearing or in his submissions on costs raise any basis, in my judgment, for a finding that he was reasonable in his rejection of the offer made by the defendant. It was clearly the claimant’s right to have an oral hearing, which he did, but his conduct in so doing is a matter which the court can properly take into account in coming to its decision on costs which I have done.

In relation to each of these grounds the claimant was the losing party. On ground one the claim was brought 15 months out of time. The claimant had pursued his claim in the Employment Tribunal. It was always open to him to pursue a claim for judicial review at the same time as pursuing his employment complaint. Further, he was prompted in April 2014 by the Registrar of the defendant that his claim was likely to be out of time at that stage. He failed to take up that further prompt for a further 12 months. He was represented by counsel at the Employment Tribunal so that the entire burden of the preparation and presentation of that matter did not fall upon him. Whilst he was ill during that the time of the Employment Tribunal proceedings, the claimant has failed to produce, whether in his original or later responses or his submissions on the costs issues, any valid reason to extend time, or explanation as to his dilatoriness in commencing the proceedings.

The claimant says in his response to the defendant’s representations on costs that the defendant ignored concerns raised by the claimant in his judicial review application. Had they put in a diligent response to his complaints about Ms Leeson then that would have persuaded him to have dropped the complaint. Because his complaints were ignored that left him with no alternative other than to commence proceedings out of time for judicial review.

I find the claimant’s submissions on this ground unpersuasive. He has produced no answer or proper explanation as to why his claim was out of time and no answer to the contention that the claim lacks merit. In my judgment it is entirely appropriate that in relation to this ground costs follow the event and the claimant is liable for the defendant’s costs on ground one.

As set out in the judgment of Warby J this ground is unarguable. In refusing permission on the papers Warby J stated that the notion that a regulator owes the regulated a duty of care in this regard is a startling one for which no authority is cited. He needed considerable persuasion concluding that the proposition is anything other than fanciful.

Still the claimant pursued his ground. However, as I said in paragraph 32 of the judgment, it was difficult to see any legal basis for it. The duty on the part of the defendant was to process the complaints responsibly, reasonably and rationally but beyond that it did not owe the claimant any duty of care.

The claimant’s concerns had been, understandably, focused on what he sees as false and malicious accusations against him from his work place. Those have been investigated and adjudicated upon in the Employment Tribunal. As a basis for judicial review I found ground three to be misconceived (see paragraph 35).

The defendant sought 35% of its costs of its acknowledgment of service to reflect the work on grounds one and three in the sum of £2,975. It sought no costs in relation to the oral renewal of those grounds.

The claimant maintained that he was concerned about the defendant’s approach to mental health issues. Had the defendant listened and articulated its response to his concerns he would have been willing to drop ground three. There is no evidence of that stance on his part in any of the documentation prior to the substantive hearing. He continued with the ground of challenge notwithstanding the very clear views expressed by Warby J. He was quite entitled to do so but that was at his own risk.

In all of the circumstances I can see no basis for not acceding to the defendant’s application to its claim for a proportion of its costs on the acknowledgment of service in relation to this ground.

In all of the circumstances and taking all of the matters into account including the set-off of the claimant’s costs against the defendant’s I order that the claimant do pay the defendant the sum of £12,933.40.