Professional Standards Authority for Health and Social Care v General Medical Council & Anor

The general rule that an unsuccessful party pays the successful party’s costs is subject to the court’s discretion. A statutory regulator which takes a genuinely neutral position in an appeal against its tribunal’s decision is not necessarily an unsuccessful party. Where the regulator reasonably declines to appeal, later agrees in principle to the relief sought, and does not oppose the appeal, the court may make no order for costs against it. Costs may nevertheless be awarded against a respondent who opposes the relief, refuses reasonable opportunities to consent, and thereby causes the appeal to proceed. Costs must also be reasonable and proportionate to the issues, work undertaken and hearing.

The Professional Standards Authority appealed against a Medical Practitioners Tribunal decision suspending Dr Dighton following findings that he had excessively prescribed potentially addictive drugs. In the substantive judgment, the court quashed the suspension and substituted erasure from the medical register: [2020] EWHC 3122 (Admin).

The present judgment concerned costs. The Authority sought its costs from the General Medical Council and Dr Dighton. The GMC had advocated suspension before the Tribunal but adopted a neutral position on the appeal and was willing to consent to the relief, while Dr Dighton opposed court-ordered erasure and declined invitations to consent.

1. Disposition. The Authority was successful. Dr Dighton was an unsuccessful party because he opposed court-ordered erasure, made submissions that voluntary erasure would suffice, declined two invitations to consent, and thereby caused the appeal to be heard.
2. The GMC’s position. Applying CPR 44.2, the GMC was neutral rather than unsuccessful. It had no duty to appeal under section 40A of the Medical Act 1983. Its decision not to appeal was not unreasonable merely because the Authority later succeeded. On the facts, the GMC reasonably discharged its public function by reminding the Tribunal of its power to impose another sanction, deciding not to appeal after the Tribunal adopted the sanction it had advocated, offering early settlement, and remaining neutral on the appeal.
3. Tribunal analogy. The court adopted the approach in Sarkar v GMC; PSA v GMC & Sarkar, [2020] EWHC 1896 (Admin). A statutory body responsible for a tribunal may be treated like an inferior court or tribunal where it does not actively oppose the challenge. The approach in R (Davies) v Birmingham Deputy Coroner, [2004] EWCA Civ 207, [2004] 1 WLR 2739, supported making no order against the GMC.
4. Quantum. Work concerning possible interim relief was related to the appeal but was discounted because the Authority abandoned that position. Although Leading Counsel was reasonably instructed, the claimed costs were disproportionately high for a short, uncomplicated hearing with limited opposition. The reasonable and proportionate sum was £20,000 plus VAT.
5. Order. There was no order for costs against the GMC. Dr Dighton was ordered to pay the Authority £20,000 plus VAT, totalling £24,000.

• High Court (Administrative Court): the substantive appeal was allowed and the Tribunal’s suspension decision was quashed, with erasure substituted: [2020] EWHC 3122 (Admin).
• High Court (Administrative Court): the present judgment determined the consequential costs issue.