Council for the Regulation of Healthcare Professionals, R (on the application of) v Health Professions Council & Anor

Where substantive proceedings are resolved by consent without a trial, the court may still determine costs by assessing, so far as appropriate, which party would probably have succeeded. The usual fallback of no order as to costs applies only where no better order is justified.

A regulatory body appealing under section 29 of the NHS Reform and Health Care Professions Act 2002 is not generally subject to a costs sanction merely because it did not send a letter before action. The statutory time limits, workload and need to obtain material may make pre-action merits correspondence impracticable.

Where proceedings were necessary because a disciplinary committee made an error, and the appeal was conceded only after proceedings were issued, the responsible regulator may properly pay the appellant’s costs up to the concession.

The Council for the Regulation of Healthcare Professionals appealed under section 29 of the NHS Reform and Health Care Professions Act 2002 against a caution imposed by the Health Professions Council’s Conduct and Competence Committee on a physiotherapist.

The appeal was conceded. The court approved a consent order quashing the caution and remitting the matter to the same committee for reconsideration of sanction. The issues were whether the regulator should pay the appellant’s costs up to the date of concession, despite there having been no judicial determination after a contested hearing and no letter before action, and the amount of costs recoverable.

1. The court approved the consent order allowing the appeal, quashing the Conduct and Competence Committee’s caution and remitting the matter for reconsideration and redetermination of sanction. The committee was directed to give full reasons addressing protection of the public.

2. Applying the principles in Boxall v Mayor and Burgesses of the London Borough of Waltham Forest, the court had power to make a costs order although the substantive proceedings had ended without trial. The court considered that the appeal would have been bound to succeed if contested. The absence of a contested judicial determination therefore did not justify a no-order outcome.

3. The absence of a letter before action did not justify depriving the appellant of costs. No applicable pre-action protocol required merits correspondence for a section 29 appeal. Although parties should generally exchange relevant information and seek to avoid proceedings, imposing a general costs-sanctioned obligation on the Council was impracticable given its statutory time limits, workload and need to obtain transcripts and other material.

4. The approach in Council for Health Regulatory Excellence v General Medical Council and Basiouny and Council for the Regulation of Health Care Professionals v General Dental Council and Fleischmann supported the conclusion that the regulatory body responsible for the disciplinary committee’s error should bear the costs required to correct it. The Health Professions Council had not conceded until 5 September 2005, and proceedings remained necessary to establish the grounds and obtain the court’s approval of the consent order.

5. The Health Professions Council was ordered to pay the appellant’s costs up to 5 September 2005. Those costs were summarily assessed at £13,703.28 including VAT. It was also ordered to pay the appellant’s costs of the costs hearing, to be assessed on the standard basis if not agreed.