The Professional Standards Authority for Health And Social Care v The General Dental Council& Anor

Costs following a successful statutory appeal are governed by the court’s broad discretion. The general rule that the unsuccessful party pays the successful party’s costs remains the starting point, but the court must consider all the circumstances, including the parties’ conduct, the issues on which the appeal succeeded, and the extent of any unreasonable resistance.

Where an appeal succeeds only on a limited ground, costs may be reduced to reflect unsuccessful arguments. Liability may then be divided between respondents according to their respective responsibility for the error and their conduct of the proceedings. A respondent may reasonably be expected to concede a clearly flawed and unduly lenient sanction, even where the appeal hearing itself remains necessary.

The Professional Standards Authority appealed against a decision of a General Dental Council committee imposing Conditions of Practice on AB. The court had previously held that the sanction was unduly lenient, quashed it, and remitted the question of sanction to the same committee.

This judgment determined the consequential costs issues. The Authority sought costs against the GDC and AB. The GDC accepted partial liability, while AB argued that no order for costs should be made against him. The central questions were the extent to which the Authority had succeeded, whether AB had acted unreasonably by failing to concede the sanction issue, and how liability should be divided.

1. Discretionary regime. Under section 29(8) of the National Health Service Reform and Health Care Professional Act 2002, the court may make such order as to costs as it thinks fit. The general rule in CPR 44.2(2)(a), that the unsuccessful party pays the successful party’s costs, is only the starting point. CPR 44.2(2)(b), CPR 44.2(4) and CPR 44.2(6) preserve a broad discretion requiring consideration of all the circumstances.
2. Extent of success. Although the Authority overturned the committee’s decision because the sanction was unduly lenient, it failed on its principal dishonesty grounds. Much of the preparation and hearing concerned those unsuccessful issues. The Authority was therefore awarded 60% of its reasonable costs.
3. Allocation between respondents. The GDC bore primary responsibility for the flawed committee decision concerning the sanction for AB’s recklessness. It was therefore appropriate in principle for the GDC to bear the majority of the Authority’s recoverable costs. Giving effect to the Authority’s limited claim, the GDC was ordered to pay 30% of the Authority’s reasonable costs up to 11 March 2016, and AB 20% of the Authority’s reasonable costs for the proceedings as a whole.
4. AB’s conduct. It was reasonable for AB to contest the dishonesty allegations. However, given the clearly flawed decision on the sanction arising from his recklessness, he should have conceded that issue. His failure to do so was unreasonable. From 12 March 2016, AB was therefore ordered to pay 33.3% of the GDC’s costs.
5. The costs orders were subject to assessment if not agreed.

The judgment followed an earlier determination in the statutory appeal. The court had quashed the imposition of Conditions of Practice as unduly lenient and remitted the sanction decision to the same committee. This judgment dealt only with the consequential costs.