David Owusu Yianoma v Bar Standards Board

In a first appeal from a regulatory disciplinary decision, costs do not automatically follow the event. The court has a discretion under Civil Procedure Rules 1998, rule 44.2, and must consider the regulatory context.

Where proceedings are reasonably brought and defended in the public interest, the regulator’s disciplinary responsibilities, funding arrangements and the risk of a chilling effect may justify making no order as to costs. That risk is not presumed for every public body or appeal. It depends on the facts, including the nature of the body and the decision defended.

The claimant appealed against disciplinary findings and sanction imposed by the Bar Tribunals & Adjudication Service. By judgment and order dated 7 November 2023, the court varied the sanction from a 12-month suspension to six months, concurrent on each of three charges, and quashed the tribunal’s decision only to that extent.

The claimant sought the costs of the appeal. The court determined whether the limited success on sanction justified an order against the Bar Standards Board, having regard to its regulatory function and funding arrangements.

1. Costs discretion. The court applied the approach in Baxendale-Walker v Law Society [2007] EWCA Civ 233. In regulatory disciplinary proceedings, the event is only one factor. There is no automatic assumption that a successful appellant should recover costs.
2. Appellate proceedings. The no-order-as-to-costs principle applicable before a professional disciplinary tribunal does not automatically govern an appeal. The court considered the distinction identified in Walker v Royal College of Veterinary Surgeons [2008] UKPC 20, where the principle was treated as inapplicable to appellate proceedings.
3. Chilling effect. The court adopted the guidance in Competition and Markets Authority v Flynn Pharma and Pfizer Inc. [2022] UKSC 14. There is no general protected status for public bodies. A potential chilling effect may be an important factor, but its existence and significance cannot be assumed. They depend on the public body and the nature of the decision defended.
4. Application. The Bar Standards Board was predominantly funded by practising certificate fees and was analogous to the regulator considered in Baxendale-Walker. It had wide disciplinary responsibilities, acted reasonably in the public interest, and had defended serious admitted misconduct. The appeal achieved only a limited variation of sanction; suspension remained appropriate.
5. Order. Each party should bear its own costs of the appeal.

1. High Court (Administrative Court): By judgment and order dated 7 November 2023, the court varied the tribunal’s 12-month suspension to six months, concurrent on each of three charges, and quashed the tribunal’s decision only to that extent. By this ruling, the court ordered that each party bear its own costs of the appeal.