The Professional Standards Authority for Health And Social Care v The General Dental Council& Anor

This judgment concerns the question of costs, following my determination that the sanction imposed by the Committee was unduly lenient, leading to the quashing of the imposition of Conditions of Practice upon AB, and the remittal of the decision, as to the appropriate sanction to be imposed upon AB, for further consideration by the same committee.

The Authority argues that its appeal was successful, such that, under CPR 44.2(3)(a), it should be entitled to its costs against the GDC and/or AB. In particular, it seeks 50% of its costs from the GDC up to the 11^th March 2016, (being the day after the date upon which it received notification from the GDC that it conceded that the Authority’s appeal should succeed), but none thereafter from the GDC. The Authority also seeks 50% of its costs from AB up to 11^th March 2016, and, in view of the lack of any such concession from AB, 100% of its costs thereafter from AB. In the alternative, if, as a result of its failure to succeed on all of its grounds of appeal, it is considered that there should be some reduction in the amount of costs to which it is entitled from AB, this reduction should not exceed 80%.

The GDC concede that the Authority is entitled to 50% of its costs from the GDC up to the 11^th March 2016, but that, in view of the lack of any concession from AB in relation to the appeal, thereafter AB should be responsible for all of the Authority’s costs. Moreover, that AB should pay the GDC’s costs from 12^th March 2016 onwards, either in whole or, in view of its support for some of the Authority’s grounds which did not succeed on appeal, at least 80% of its costs.

AB argues that there should be no order for costs made against him in favour of either of the other two parties. He submits that the Authority failed to succeed on its main grounds relating to the issue of dishonesty, and that the decision which was found to be in error was that of the GDC. Moreover, that he was unable to “cure” the error such that an appeal hearing was inevitable, and/or that it would be unrealistic and unfair to expect him to agree to a more onerous sanction than that imposed by the Committee.

Section 29(8) of the National Health Service Reform and Health Care Professional Act 2002, provides that the court, “may make such order as to costs (or, in Scotland, expenses) as it thinks fit.” Moreover, although the general rule under CPR 44.2(2)(a), “…....is that the unsuccessful party will be ordered to pay the costs of the successful party”, the court has a general discretion as to costs, and, under CPR 44.2(2)(b), “..…..may make a different order.” The orders which the court may make include those referred to in CPR 44.2(6), and, in deciding what order to make about costs, the court must have regard to all the circumstances, including those set out in CPR 44.2(4).

In my judgment it is necessary to bear in mind both the general and specific contexts in which these proceedings have taken place.

In relation to the general context, the proceedings involved the Authority, a public body responsible for promoting the interests of patients by reviewing the work of various professional health bodies, seeking, by invoking the statutory appeal procedure, to impugn the decision of one of the GDC’s Health Committees, which has a duty to promote high standards of professional conduct among dentists within the UK. Therefore, not only are the Authority’s duties of a public nature, including the promotion of the best interests of patients, but the decision which was sought to be impugned was that of one of the GDC’s Health Committees, which in itself has duties, both of a public nature, to protect patients from the risk of harm, and also a reputational nature for the benefit of the dental profession.

In relation to the specific context, it is clear that the main thrust of the Authority’s submissions, was that the Committee’s approach to the issues relating to AB’s dishonesty was unduly lenient, including its finding that it did not amount to professional misconduct, its effect upon his credibility, and the appropriateness of the sanction of Conditions of Practice. This remained the Authority’s position during the course of the hearing on 11^th May 2016. In so far as the GDC is concerned, it was generally supportive of the Authority’s submissions relating to AB’s dishonesty, but was also critical of the Committee’s decision to impose Conditions of Practice in relation to their finding of recklessness. Although the GDC maintained its support for the Authority’s position in relation to the issues relating to AB’s dishonesty, during the course of the hearing, it re-focused its primary position to that of a criticism of the Committee’s decision not suspend AB from practice, due to the reckless nature of his failure to acquaint himself with the relevant guidance or to cease exposure prone procedures.

Therefore, in relation to the Authority’s costs, although it succeeded in overturning the Committee’s decision on the statutory basis that it was unduly lenient, it did not do so on any of its primary grounds. Moreover, although it is necessary to have regard to the fact that an appeal hearing would have been necessitated in any event, much of the time spent, both in preparation for that hearing, and, to an extent, at the hearing was expended upon those unsuccessful grounds of appeal.

In relation to the GDC’s costs, although it is necessary to reflect the fact that, since 10^th March 2016, it conceded the flawed nature of the Committee’s decision, and re-focused its primary position at the hearing, it is in my judgment of importance to recognise two matters: firstly, and most significantly, that the impugned decision was that of the Committee, and; secondly, that it also supported the Authority’s main grounds of appeal, both prior to and at the appeal hearing.

On the other hand, although I accept that, given the nature of the proceedings, an appeal hearing was inevitable, it was necessary from the outset of these proceedings for AB to consider his position with care, and to reflect this in his response to them. In these circumstances, although it was appropriate for him to have contested the Authority’s primary submissions in relation to the issues relating to his dishonesty, in view of the clearly flawed decision of the Committee, in relation to the appropriate sanction arising out of the reckless nature of his failure to acquaint himself with the relevant guidance or to cease exposure prone procedures, I do not accept that it would have been either unrealistic or unfair to have expected AB to concede this matter. Indeed, I consider that it was unreasonable of him not to have done so in this case.

In these circumstances, although the general rule will apply, such that as unsuccessful parties, both the GDC and AB will, in principle, be liable to pay the Authority’s costs of the proceedings, as I am of the view that there were no reasonable prospects of the issues relating to AB’s dishonesty succeeding, I consider that the Authority is only entitled to part of those costs. In this regard, taking into account the inevitability of an appeal hearing, albeit had AB properly considered his position this would have been of a particularly limited nature, I consider that the appropriate amount of the Authority’s costs which it should be entitled to recover is 60% of the reasonable costs of the proceedings.

As to the question of the division of liability for these costs between the GDC and AB, for the reason I have sought to explain, namely the primary responsibility of the GDC for the flawed decision of the Committee in relation to the sanction imposed in relation to the issue of AB’s recklessness, I consider that in principle the GDC ought to bear the majority of liability for those costs, namely 66.6%. However, in view of the fact that Authority limits the amount of costs which it seeks to obtain from the GDC to 50%, and then, only up to, but not beyond, 11^th March 2016, I will limit the GDC’s liability accordingly. Thus, the GDC will be ordered to pay 30% of the Authority’s reasonable costs of the proceedings, to be assessed if not agreed, up to the 11^th March 2016, whereas AB will be ordered to pay 20% of the Authority’s reasonable costs of the whole of the proceedings, to be assessed if not agreed.

In relation to the question of costs as between the GDC and AB, although the genesis of the proceedings was the flawed decision of the Committee, as I have already mentioned, I do consider that it was unreasonable for AB not to have conceded that the Committee’s decision relating to the issue of sanction arising from its finding of his recklessness was unduly lenient, such that the GDC are entitled, in part, to its costs in the proceedings, albeit the GDC only seek such costs as from 12^th March 2016. In my judgment, the appropriate order, reflecting the division of their responsibility for the Authority’s costs, is that as from 12^th March 2016, AB pay 33.3% of the GDC costs of the proceedings, to be assessed if not agreed.