Bar Standards Board, R (On the Application Of) v Disciplinary Tribunal of the Council of the Inns of Court

Costs in Bar disciplinary proceedings are governed by the tribunal’s own costs rules, not the Civil Procedure Rules, which are neither directly applicable nor persuasive where the proceedings involve different considerations. The common law permits compensation for a successful barrister’s expenditure of professional skill and labour, subject to a reasonable assessment.

An assessor errs in law by treating a decision based on the Civil Procedure Rules as binding and thereby failing to exercise the discretion conferred by the tribunal’s rules. On judicial review, the High Court may substitute its own decision only where, without the error, there could have been only one lawful outcome. If the proper rate remains open, the matter must be remitted, even if the parties agreed to the court fixing a rate.

The Bar Standards Board brought disciplinary proceedings against Natasha Sivanandan. The disciplinary tribunal dismissed the charges and ordered the Board to pay her costs. An assessor assessed her time at £120 per hour.

The Divisional Court granted judicial review, quashed the assessment, substituted a rate of £60 per hour and ordered Ms Sivanandan to pay 60% of the Board’s judicial review costs. She appealed on the proper costs approach, the Divisional Court’s jurisdiction to substitute a rate, and the costs order.

The central issues were whether the assessor had failed to exercise the discretion conferred by the disciplinary rules and whether the statutory conditions for substituting a decision on judicial review had been met.

1. Costs framework. Rule 31 of the Bar’s Disciplinary Tribunal Rules 2009 gives the tribunal a broad discretion over costs. The Civil Procedure Rules were not directly applicable and, because disciplinary proceedings involve different considerations and rules, were not even persuasive. The common-law guidance remained the principle in London Scottish Benefit Society v Chorley (1884) 13 QBD 872, under which professional skill and labour may form part of the recoverable loss of a successful professional litigant. Khan v the Lord Chancellor [2003] 1 WLR 2385 provided analogous support for a barrister.
2. Error by the assessor. The assessor wrongly considered himself bound by Miller v Bar Standards Board, an unreported decision in which Ryder J had used the CPR provisions to measure a barrister’s recoverable costs. Malkinson v Trim [2002] EWCA Civ 1273; [2003] 1 WLR 463 showed the relevant distinction between a solicitor acting through the firm and one acting in his own time. The CPR provision relied upon in Miller did not apply. The assessor therefore failed to exercise the independent discretion required by Rule 31.
3. Remedy for error of law. Jafri v Lincoln College [2014] EWCA Civ 449; [2015] QB 781 confirmed that a reviewing court must remit unless the error was immaterial or only one lawful outcome was possible. Under sections 31(5) and 31(5A) of the Senior Courts Act 1981, the Divisional Court had no basis to conclude that only one rate could have been selected. The parties’ agreement could not confer jurisdiction to substitute a rate. The assessment had to be remitted.
4. Other issues and orders. The challenge to the permission application failed: the agreement had been mentioned obliquely, any breach of candour was not sufficiently obvious, and no specific revocation application was before the court. The Divisional Court’s partial costs order was within its broad discretion and required no fuller reasons. The appeal was allowed only to the extent of remitting the costs assessment to the tribunal. The quashing order and the Divisional Court’s costs order remained undisturbed.

• Court of Appeal (Civil Division): On 24 May 2016, allowed the appeal only to the limited extent of remitting the hourly-rate assessment to the disciplinary tribunal, while dismissing the appeal against the judicial review costs order: [2016] EWCA Civ 478.
• High Court, Queen’s Bench Division, Administrative Court (Divisional Court): On 16 May 2014, granted judicial review, quashed the £120 hourly-rate assessment, substituted £60 per hour and ordered the appellant to pay 60% of the respondent’s costs.