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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bar Standards Board, R (On the Application Of) v Disciplinary Tribunal of the Council of the Inns of Court [2016] EWCA Civ 478 (24 May 2016) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2016/478.html Cite as: [2016] WLR 4506, [2016] 3 Costs LR 633, [2016] EWCA Civ 478, [2016] 1 WLR 4506, [2016] WLR(D) 287 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION,
ADMINISTRATIVE COURT
(LORD JUSTICE MOSES AND MR JUSTICE COLLINS)
CO/5700/2013
Strand, London, WC2A 2LL |
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B e f o r e :
and
LADY JUSTICE KING
____________________
R (BAR STANDARDS BOARD) |
Respondent/ Claimant |
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- and – |
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DISCIPLINARY TRIBUNAL OF THE COUNCIL OF THE INNS OF COURT |
Defendant |
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-and- |
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NATASHA SIVANANDAN |
Interested Party/ Appellant |
____________________
Timothy Brennan QC (instructed by Bar Standards Board) for the Respondent
Hearing date: 11 May 2016
____________________
Crown Copyright ©
Lord Justice McCombe:
"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."
"(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."
"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."
"…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".
"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."
"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.
"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.
"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."
"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."
"(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 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)."
Lady Justice King DBE: