Lonsdale v Bar Standards Board

A disciplinary tribunal’s power to award costs may extend beyond ordinary inter partes costs. Where the governing rule confers power to make such orders as the tribunal thinks fit, costs can include expenses which the regulator is liable to pay for operating the tribunal, including fees and expenses of tribunal personnel. The rule must be read as a whole. A provision requiring other tribunal costs and expenses to be borne by the regulator does not prevent a discretionary costs order under the preceding provision. Regulatory disciplinary proceedings are conducted in the public interest, so ordinary civil litigation assumptions about costs do not apply automatically.

Miss Lonsdale applied for judicial review of a disciplinary tribunal’s decision that she pay £4,379 to the Bar Standards Board. Permission had been granted on Ground 2, concerning whether the tribunal had jurisdiction to award costs representing the expenses of running the tribunal. She also sought to amend the claim to add an appointments ground and applied to exclude the Board from further participation because of alleged disclosure and procedural failures.

The court had to decide whether the appointments ground should proceed, whether the Board should be debarred, and whether rule 31 of the disciplinary tribunal rules authorised the costs award.

1. Appointments ground. No decision was made on permission. The issue was stood over because applications for permission to appeal in R (on the application of) Leathley & Ors v Visitors to the Inns of Court & Anor [2013] EWHC 3097 (Admin) and related cases remained outstanding. The Board was directed to notify the Administrative Court of the Court of Appeal’s decision within seven days, after which the papers would be placed before a judge to consider permission.
2. Debarring application. The Board was not excluded. Any failure in disclosure was relevant only to the adjourned appointments issue. In relation to Ground 2, the claimant had suffered no prejudice. If disclosure was ineffective, the appropriate remedy was an application for specific discovery. The late detailed grounds of resistance caused no substantial prejudice.
3. Ground 2. The claim failed. Rule 31(1), read with rule 31 as a whole, conferred a broad discretionary power to order payment of costs to the Board. Costs could include fees and expenses which the Board was liable to pay under its arrangements with the Council of the Inns of Court, including payments relating to the tribunal clerk, shorthand writer and lay representatives.
4. The words introducing rule 31(4) qualified both costs and expenses. Rule 31(4) therefore did not confine rule 31(1) to ordinary inter partes costs. The construction was consistent with the approach to regulatory disciplinary costs in Baxendale Walker v The Law Society [2008] 1 WLR 426.
5. The supplementary challenges also failed. The Board had effectively stepped into the shoes of the Bar Council, and the absence of actual expenditure on the disputed £255 did not require a deduction. Ground 2 was dismissed. Costs submissions concerning Ground 2 and the day’s hearing were to be made in writing.

• High Court (Administrative Court) Permission was granted by Davis J on Ground 2 only on 16 June 2011. Charles J subsequently gave case-management directions, including determination of Ground 2 and consideration of permission for the appointments ground. On 8 October 2014, Patterson J dismissed Ground 2, declined to debar the Board, and stood over the appointments ground.