Bar Standards Board left with £100,000 bill after QASA costs ruling

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Court of Appeal: unreasonable to expect barristers to pay BSB’s costs

The Bar Standards Board (BSB) is facing a bill for over £100,000 after the Court of Appeal ruled that there was no need for it to be separately represented at the hearing of the judicial review against the Quality Assurance Scheme for Advocates (QASA).

Appeal judges dismissed last month the challenge by four criminal law barristers against approval of QASA by the Legal Services Board (LSB).

Giving the leading judgment, the Master of the Rolls, Lord Dyson, held that the scheme was lawful and the LSB’s decision to approve it was neither disproportionate nor unreasonable.

In an ex tempore decision, reported by Lawtel, Lord Dyson, sitting with Lord Justices Fulford and Sharp, held that the BSB’s submissions could have been made by the LSB and its evidence was already before the court.

In those circumstances it would be unreasonable to expect the four criminal law barristers who brought the judicial review to pay the BSB’s costs, which were estimated at over £100,000.

A spokesman for the BSB said: “We have noted what the Court of Appeal has said in relation to the appeal costs and we respect the court’s decision.”

However, the lord justices rejected the arguments of the barristers that they should not have to pay the costs of their judicial review hearing in the High Court and the Court of Appeal.

The barristers argued that their challenge was public interest litigation, brought in the interests of the whole profession, and they enjoyed a measure of success because of amendments proposed to the QASA scheme as a result of the proceedings.

The Court of Appeal heard that the barristers’ costs in the High Court were limited by The LSB and BSB agreed to split the costs, so the High Court ordered the barristers to pay £112,500 to the LSB and £37,500 to the BSB.

A further PCO was made limiting their appeal costs to £65,000. The Court of Appeal ruled that there was no reason to disturb the High Court’s costs order in favour of the LSB and BSB, and dismissed this part of the appeal.

It accepted the barristers’ arguments that the BSB should not be able to recover its costs as an intervening party at the Court of Appeal, but ruled that the LSB should be able to recover its costs, estimated at £93,000, up to the £65,000 allowed for by the cap.