High Court Rules on Costs in Disciplinary Tribunal Appeals: Public Interest Prevails over 'Loser Pays' Principle

Citation: [2023] EWHC 3329 (Admin)
Judgment on

Introduction

In the matter of David Davies v David Greene ([2023] EWHC 3329 (Admin)), the High Court of Justice addressed the prevailing issue of costs incurred during and following appeals from decisions made by professional disciplinary tribunals. While the original disciplinary proceedings before the Solicitors Disciplinary Tribunal (SDT) were concluded without costs awarded against either party, the subsequent appeal triggered several legal principles which illuminate the judiciary’s stance on cost-bearing in such cases.

Key Facts

David Davies, acting as a lay complainant, had his case certified by the SDT, thus signifying there was a case to answer against David Greene. Upon the case’s dismissal at the SDT, Davies appealed but ultimately lost. The pivotal argument during the subsequent cost ruling revolved around whether Davies should bear the costs of the appeal, whereby Mr. Hubble KC, representing Greene, posited that as the unsuccessful party, Davies should be responsible for the costs. In contrast, the court considered the public interest element in disciplinary proceedings and Davies’ role akin to standing in the shoes of the Solicitors Regulation Authority (SRA).

The court, through Mr Justice Calver, addressed several legal principles:

  1. Loser Pays Principle: Typically, the losing party is ordered to pay costs. However, this case introduces a nuanced approach considering the public interest implications. ([paragraph 1])

  2. Disciplinary Proceedings: The court drew on the Court of Appeal’s observations in Greene v Davies [2022] EWCA Civ 414, emphasizing the public interest element inherent in disciplinary proceedings, differentiating it from civil litigation. This differentiation set the tone for assessing costs uniquely in disciplinary contexts. ([paragraph 4])

  3. No Costs Order in Disciplinary Tribunals: The judgment posited that the principle of “no order as to costs” applicable to first-instance professional tribunals does not necessarily extend to appeals. This principle was discussed in the context of the precedent mentioned in Owusu-Yianoma v Bar Standards Board [2023] EWHC 3112 (Admin) and Competition and Markets Authority v. Flynn Pharma and Pfizer Inc. [2022] UKSC 14 ([paragraph 5]).

  4. Public Interest Consideration: Recognizing the SDT’s certification of the case and inability to withdraw without approval solidifies the notion that disciplinary proceedings, even if initiated via a lay complaint, are guided by public interest rather than the interests of the individual complainant. ([paragraph 6])

Outcomes

Based on these legal principles, the court ruled it appropriate that the fair order in the circumstances was for each party to bear their own costs for the appeal. This outcome reflects the unique status of disciplinary proceedings, where even the party who is unsuccessful on appeal may not be burdened with costs if the proceedings were reasonably brought and served the public interest. The judge’s discretion played a central role in achieving what was considered a “fair disposal” of costs, informed by the aforementioned principles and the specific context of the case. ([paragraph 9])

Conclusion

David Davies v David Greene ([2023] EWHC 3329 (Admin)) underscores the importance of considering the wider public interest in professional disciplinary matters. The judiciary has demonstrated a willingness to deviate from the standard ‘loser pays’ principle in these contexts, allowing for a more equitable distribution of costs in situations where a case, while unsuccessful, has been brought in good faith for the scrutiny of professional conduct. The legal principles applied offer a framework for future disciplinary appeals, where costs may be imposed differently in light of the public interest vested in the professional standards of conduct.