High Court Upholds No Order as to Costs in Regulatory Appeal Case

Citation: [2023] EWHC 3112 (Admin)
Judgment on

Introduction

The case of David Owusu Yianoma v Bar Standards Board [2023] EWHC 3112 (Admin) discusses the principles governing costs orders in the context of regulatory appeal proceedings. It raises important issues about whether regulatory bodies should be shielded from the consequences of adverse cost orders. The High Court’s judgment in this case provides insight into how the courts may exercise their discretion regarding costs, especially in cases involving the unsuccessful regulatory actions by public bodies like the Bar Standards Board (BSB).

Key Facts

In David Owusu Yianoma v Bar Standards Board, the High Court varied the Bar Tribunals & Adjudication Service’s decision. Initially, the Tribunal imposed a 12-month suspension on Mr. Yianoma on three charges of professional misconduct. Upon appeal, the High Court substituted this order with a 6-month concurrent suspension on each charge, thereby quashing the Tribunal’s decision to that extent.

A subsequent ruling on costs was then required. The Court had to decide whether the BSB, as the unsuccessful party in the appeal, should bear the costs of the appellant, or whether no order as to costs should be made.

Several legal principles were considered to determine the appropriate costs order:

  1. Regulatory Context in Costs Orders: The Court referenced principles expounded in Supreme Court cases such as Competition and Markets Authority v. Flynn Pharma and Pfizer Inc. [2022] and Baxendale-Walker v Law Society [2007]. Costs orders against regulatory bodies may generally be inappropriate if the complaint is properly brought, as there exists a risk that such an order may have a chilling effect on the exercise of the regulators’ public duties.

  2. First Appeal Against Administrative Decisions: It was highlighted that the “no order as to costs” principle pertinent to first instance professional tribunals does not extend to appeals. In an appeal setting, the norm is that costs follow the event, but this norm can be displaced by considerations specific to regulatory contexts.

  3. Public Interest & Chilling Effect: The significance of the public interest and the potential for a chilling effect on the regulatory body’s functioning were emphasized as critical factors in deciding whether or not to award costs against the regulator.

  4. Reasonableness of the Regulatory Action: The reasonableness of the BSB’s actions in bringing the appeal were underscored; the proceedings originated from its responsibility to maintain professional standards, not from vindictive or unreasonable reasoning.

  5. Partial Success: The Court also acknowledged that while the appellant partially succeeded, their appeal was not completely successful, which influenced the consideration of an appropriate costs order.

Outcomes

After consideration of the factors laid out above, Mr. Justice Calver ruled that each party should bear their own costs. He aligned this discretion with the principles laid down in Baxendale-Walker and other identified cases. This decision serves as an indication that while regulatory bodies can be protected from adverse cost orders to some extent, it is still imperative that they bring or defend proceedings reasonably and in the public interest.

Conclusion

The High Court’s judgment in David Owusu Yianoma v Bar Standards Board reinforces the delicate balance courts strive to maintain in respecting the regulatory role of bodies like the BSB and ensuring that they are not unduly inhibited by the risk of adverse costs orders. This decision does not grant blanket immunity from costs to regulatory bodies but rather demonstrates a nuanced approach, taking into account the responsibility regulators have towards the public and the profession they serve, the reasonableness of their actions, and the concerns over chilling effects on their regulatory role. This case will serve as guidance for how courts may handle similar matters in the future, ensuring that the right balance is struck between accountability of the regulator and encouragement of their public duty.

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