Lady Justice King: appeal largely dismissed
The Court of Appeal has upheld a ruling that a barrister who successfully defended herself in disciplinary proceedings should not be paid costs at the £120 hourly rate allowed by a tribunal-appointed assessor.
However, it upheld the basic principle that barristers in such situations can claim their costs at a rate higher than that of a normal litigant-in-person.
It dismissed the appeal by Natasha Sivanandan “save that it should be allowed to the very limited extent” of remitting the case to the tribunal to determine the correct rate.
After the case against her was thrown out by a Bar tribunal in 2013, Ms Sivanandan was awarded £120 per hour for 166 hours of work on her case – a total of £27,521.
The BSB contended Ms Sivanandan should receive only the £18 an hour prescribed for a litigant-in-person (£9.25 until 30 September 2011) by the Civil Procedure Rules. On judicial review, the Divisional Court in 2014 rejected the argument but ruled that the hourly rate should be cut to £60, taking into account that the barrister was not practising at the time.
In R (on the application of Bar Standards Board) v Disciplinary Tribunal of the Council of the Inns of Court [2016] EWCA Civ 478, Lord Justice McCombe, sitting with Lady Justice King, agreed with the Divisional Court that the tribunal’s assessor, Andrew Post QC, failed to exercise his discretion properly.
However, the Court of Appeal said it had not been open to the Divisional Court to fix the £60 rate, even though it was reached by agreement between the parties.
Under section 31(5) of the Senior Courts Act 1981, a court upholding a judicial review can only substitute its own decision if “without the error, there would have been only one decision which the court or tribunal could have reached”.
McCombe LJ said: “In the face of the section, [the Divisional Court] simply did not have the material to conclude that there would have been only one decision that the tribunal would have reached and, therefore, section 31 required that the matter be remitted to the tribunal.”
But the judge had no doubt that in doing so, the tribunal would bear in mind Moses LJ’s view in the earlier judgment that “the financial loss which the barrister has incurred includes expenditure of her own professional skill”.
McCombe LJ also upheld the ruling that Ms Sivanandan should pay 60% of the BSB’s judicial review costs: “A partial costs order in favour of the respondent was well within the broad discretion of the court in these circumstances.”
He reiterated comments made by Jackson LJ when granting permission to appeal that because the sums in issue were modest, the matter should be resolved through mediation: “I express the hope that, even at this late stage, the parties might agree a summary and cost-free method of resolving the issue of the proper hourly rate by a mutually respected mediator.”
Ms Sivanandan said: “It’s good news for barristers who, like me, successfully defend themselves against the BSB and get costs, that costs will be at a rate taking into account their professional skill and not at the CPR rate of £18 per hour.”
A BSB spokesman said: “Due to the decision to remit the matter for assessment of costs, the proceedings are ongoing. Therefore, it would not be appropriate to comment further at this stage.”
Costs paid should be those equivalent to a Solicitor grade in civil proceedings. The BSB bring cases and if they lose they ought to pay the costs. Remember that whilst a professional person is attending to the BSB complaint they are prevented from doing their normal role at a higher rate than what one assumes will be that suggested to this barrister by the regulator.