Bar Standards Board, R (on the application of) v Disciplinary Tribunal of the Council of the Inns of Court & Anor

Judicial review is available against a disciplinary tribunal’s costs decision where the applicable regulations provide no appeal against costs and costs are not part of sentence. Unless the governing disciplinary rules adopt them, the Civil Procedure Rules 1998 do not determine the assessment of costs. Where those Rules do apply, a barrister acting in person cannot claim the value of his or her own professional time as financial loss under rule 48.6. Where they do not apply, the tribunal may compensate a successful barrister for professional skill and time under its own costs rules. The award must nevertheless be reasonable and reflect the circumstances, including whether the barrister was practising.

The Bar Standards Board sought judicial review of a costs assessment made after disciplinary proceedings against the interested party, a barrister who successfully defended the charges. The tribunal had ordered the Board to pay her costs, and the assessor awarded £27,521.50, including 166 hours of her own time at £120 per hour.

The assessor treated the Civil Procedure Rules 1998 as persuasive but considered himself bound by Miller v Bar Standards Board. The central issues were whether the CPR applied, whether a barrister acting in person could recover the value of her own professional skill and time, and the proper rate of any award.

1. The claim for judicial review was competent. Regulation 25 of the Disciplinary Tribunals Regulations 2009 permitted an appeal to the Visitors only against conviction or sentence. A costs order was not sentence under regulation 19. The principle in R v Visitors to the Inns of Court ex parte Calder therefore did not apply.

2. The assessor was not bound by Miller v Bar Standards Board, particularly since its interpretation conflicted with the Court of Appeal’s reasoning in Malkinson v Trim. If the CPR had applied, rule 48.6 would have prevented a barrister acting in person from claiming the cost of her own professional skill and judgment as financial loss.

3. The CPR did not apply, and were not even persuasive, because regulation 31 gave the tribunal power to award such costs as it saw fit and the Board’s rules did not incorporate the CPR. Applying rule 48.6 in those circumstances would encourage the unnecessary employment of another lawyer.

4. Under the Board’s own rules, a successful barrister who had not brought the proceedings upon herself could recover compensation for the expenditure of her professional time and skill. The agreed 166 hours were recoverable, but £120 per hour was excessive given that the interested party was not practising. The proper rate was £60 per hour.

5. The assessor’s determination was quashed and an award calculated at £60 per hour substituted.

This was a first-instance judicial review of a costs assessment made following disciplinary proceedings before the Disciplinary Tribunal of the Council of the Inns of Court.