Smart v Nursing and Midwifery Council

Where an appeal fails, the general position is that costs follow the event. The court retains a discretion under CPR 44.2 to make a different order after considering all the circumstances, including the parties’ conduct and the reasonableness of raising or pursuing particular issues. A litigant’s lack of representation and difficult financial or personal circumstances do not, without more, displace the ordinary costs order. Those circumstances may be relevant to the practical arrangements for payment. The amount may be reduced where the work claimed is disproportionate or unreasonable, but not merely because the paying party has limited means.

Justice Afrifa Smart appealed against a decision of the Nursing and Midwifery Council. The appeal was dismissed following the substantive hearing. The court then considered the respondent’s application for its costs. The appellant, who appeared in person, relied on severe financial difficulties, unemployment and chronic depression, and asked the court either to make no costs order or to reduce the amount claimed. The central issues were whether the usual rule that costs follow the event should be displaced and whether the claimed costs were reasonable and proportionate.

1. Appeal dismissed. The appeal had failed on all grounds. The appellant’s lack of representation did not alter the court’s focus on the expense incurred by the respondent in resisting the appeal.
2. Under CPR 44.2, costs are discretionary, but the usual position is that costs follow the event. The court must have regard to all the circumstances, including conduct, partial success, offers to settle and whether it was reasonable to raise, pursue or contest a particular allegation or issue.
3. No sufficient reason existed to depart from the usual order. The respondent had not acted unreasonably, had succeeded comprehensively, and had been required to incur expense in resisting the appeal. The appellant’s personal circumstances attracted the court’s sympathy but did not justify removing the costs order.
4. The amount claimed could be reduced if particular work was disproportionate or unreasonable. The appellant’s ability to pay was not a basis for reducing the sum on assessment. The court nevertheless reduced the claim from £4,364 to £4,000 on a broad-brush assessment, principally in relation to work done on documents.
5. The costs were summarily assessed at £4,000, payable within 56 days. The respondent indicated that it would contact the appellant to discuss a practical payment arrangement.

The judgment does not identify the citation of the decision under appeal. The Administrative Court dismissed the appeal and made the consequential costs order.