Costs

R (on the application of Bar Standards Board) v Disciplinary Tribunal of the Council of the Inns of Court: Queen's Bench Division, Divisional Court: 16 May 2014

Assessor finding interested party being entitled to costs for financial loss in conducting proceedings herself - Assessor finding CPR persuasive - Claimant seeking judicial review

In September 2012, disciplinary proceedings were determined in favour of the interested party, a non-practising barrister. The defendant Disciplinary Tribunal of the Council of the Inns of Court (the tribunal) ordered the claimant Bar Standards Board (the BSB) to pay the interested party's costs.

In February 2013, the assessor took the view that the CPR were persuasive. The assessor applied the principle that the interested party, by reason of her status as a barrister and the fact that she had conducted the proceedings herself, had established financial loss sufficient to allow recovery of two-thirds of the rate a solicitor would have charged. He ordered the BSB to pay costs of £27,521.50, including for the interested party's time, at £120 per hour for 166 hours. The BSB sought judicial review.

The BSB contended that: (i) the interested party had been entitled to no more than that to which a litigant in person would have been entitled, and that the expenditure of her time and skill had not amounted to financial loss within the meaning of CPR 48.6(4)(a); (ii) the assessor had been entitled to reach the decision that the CPR were persuasive; and (iii) the interested party had suffered no loss because she was no longer in practice. CPR Practice Direction 44 concerning costs (the costs Practice Direction) was considered.

The court ruled: CPR 48.6(6), read with the costs Practice Direction, had overturned the principle that a solicitor acting as a defendant in person was entitled to reasonable professional remuneration for work which, if he had not performed it himself, would have had to have been done by another solicitor and paid for by his unsuccessful opponent. Neither a solicitor nor a barrister acting in person could include in their proof of financial loss, under CPR 48.6(4)(a), the cost of the provision of their own professional skill and judgment in their own case (see [5], [13] of the judgment).

The application of CPR 48.6 should have led to the conclusion that the interested party had not been entitled to charge for the expenditure of her own professional skill and judgment. However, the CPR had not even been persuasive. If the BSB was concerned to avoid having to pay the costs of a barrister's time when that barrister had successfully defended proceedings, it was open to it to provide in its rules that the CPR should apply. The correct basis of assessing those costs was in accordance with the BSB's own rules, namely, to award such costs as the tribunal thought fit.

In the absence of CPR 48.6, there was no basis for saying that the expenditure of a barrister's own time and skill should not be compensated in circumstances where the barrister was successful. The financial loss the interested party had incurred included the expenditure on her own professional skill. Accordingly, the interested party had suffered loss, although she had no longer been in practice and she was entitled to the costs represented by her expenditure of professional skill.

However, they should not be assessed at anything like the amount which the assessor had felt bound to award. A reasonable figure would be £60 per hour, taking into account the fact that the interested party had not been practising at the time (see [16], [18]-[20] of the judgment).

The assessor's determination would be quashed and an award of costs calculated on the basis of a rate of £60 per hour would be substituted (see [21] of the judgment).

London Scottish Benefit Society v Chorley 12 QBD 452 considered.

Timothy Brennan QC (instructed by Fredelina Telfer) for the BSB; Richard Wilson (instructed by Direct Access) for the interested party.

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