Jackson LJ upholds professional regulatory decisions, but supports refusal of costs to victor

22 Dec 2014

Following an unusual full day hearing on extensive permission to appeal applications, where BLM acted for the Bar Standards Board (BSB) (regulator of the Bar of England and Wales), the three justices (Jackson, Ryder and Sharp) halted prospective appeals by barristers against the Divisional Court’s rejection of challenges to convictions for professional misconduct.

The claims were brought on the grounds that some of the decision-takers in their cases (at Disciplinary Tribunals or appeals to the Visitors to the Inns) were allegedly not eligible to sit. Problems with the administration of the disciplinary system, which have been widely publicised, were not disputed. The claims concerned the legal consequences, and were in part funded by the Bar Mutual Indemnity Fund. The Divisional Court had upheld the regularity of the disciplinary decisions by concluding that the relevant regulations had not been breached, and that, in any event, any defects in appointments were saved by the ‘de facto’ authority of the decision takers.

The Court of Appeal concurred with the Divisional Court in finding that the key provisions of disciplinary regulations had been complied with, and that deviation from ancillary procedures concerning appointment did not cause a breach of the regulations themselves, either directly or indirectly, and could not therefore render the decisions a nullity.

However, as to ‘de facto authority’, had there been a breach of the regulations, the court would have granted permission to appeal. It was not unarguable that this ancient doctrine, emphasising the substance of judicial authority rather than the form of appointment, would have rescued the appointments, and hence the decisions, from invalidity.

This remains an important decision for those working in the field of a professional discipline, and related matters.

Costs – circumstances outside the litigation

The court rejected the BSB’s attempt to appeal the Divisional Court’s refusal of costs, despite the victory, on the grounds that the failings in the disciplinary procedures were, in part, the origin of the litigation.

This novel exercise of discretion, particularly as endorsed by Jackson LJ, potentially exposes any successful party to non-recovery of costs for reasons connected to circumstances from which litigation has emerged, however lacking in legal merit. There was no assertion of unreasonable conduct in the litigation itself.

It is of particular interest to defendants’ lawyers and their insurers, as seeming to reflect the policy of seeking to extend qualified one way costs shifting into areas beyond personal injury: an objective recently described by Ramsey J as  “…the true Jackson proposal, if you have a genuine case, you shouldn’t have to pay the defendant’s costs if you lose”

Please contact Richard Wilkins if you would like to discuss this matter further or if you would like a copy of the judgment.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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