High Court Rectifies Solicitors Disciplinary Tribunal Error in Cost Order, Provides Guidance on Factors to Consider

Citation: [2023] EWHC 2981 (Admin)
Judgment on

Introduction

The case of Solicitors Regulation Authority Limited v Daniel Whittingham [2023] EWHC 2981 (Admin) offers an examination of an appeal against the judgment of the Solicitors Disciplinary Tribunal (“SDT”). This case provides insight into the application of legal principles regarding cost orders in disciplinary proceedings, the relevance of a party’s conduct in litigation, and the limits of discretion exercised by the SDT in awarding costs. The decision rendered by the High Court outlines the errors made by the SDT and sets a precedent for assessing costs in similar future proceedings.

Key Facts

The case arose from an appeal made by the Solicitors Regulation Authority (“Appellant”) against the costs order made by the SDT where the latter ordered the Respondent to pay costs in the sum of £5,000. The Appellant contended that costs should have been awarded in the sum of £22,200.

The Respondent exhibited non-attendance and engagement issues throughout the proceedings, including failure to appear for the SDT hearing, which necessitated the Appellant to prepare for a fully contested two-day hearing that concluded in one day.

Upon reviewing the case, the Deputy High Court Judge Neil Cameron KC found that the SDT erred in their costs order due to not considering several relevant factors as required by the Solicitors (Disciplinary Proceedings) Rules 2019.

Several legal principles played a pivotal role in this judgment:

  • Discretionary Orders: The High Court emphasized that tribunals have broad discretion in making cost orders (as per Rule 43(1) of the 2019 Rules). However, the exercise of this discretion must be within the confines of the law and consider all relevant factors.

  • Appeals by Review: Following Civil Procedure Rules 52.21, appeals are generally limited to a review of the lower court’s decision, establishing whether the decision was ‘wrong’ or ‘unjust’ due to procedural irregularities.

  • Relevance of Conduct: The respondent’s conduct in litigation was a crucial consideration. Their lack of engagement could unfairly increase the appellant’s preparation costs—a factor that the SDT appeared to overlook.

  • Costs Assessment Criteria: Rule 43(4) of the 2019 Rules outlines the criteria for assessing costs, including the conduct of parties, compliance with directions and time limits, the reasonableness and proportionality of time spent, and the costs claimed. The SDT must consider the Respondent’s means or lack thereof if not disclosed.

  • Guideline Hourly Rates: The court assessed the reasonableness of costs using the Ministry of Justice’s guideline hourly rates and recognized the appropriateness of a perceived ‘blended rate’ for solicitors with varying levels of experience.

  • Standard of Review: The court demonstrated caution by noting that interfering with a tribunal’s decisions, especially those hinged on fact-finding or discretionary judgment, requires a high threshold—a balancing act between respecting the tribunal’s discretion and rectifying any identifiable errors.

Outcomes

The High Court permitted the appeal on the grounds that the SDT’s decision on costs was wrong, having failed to consider all relevant factors, particularly the conduct of the Respondent and the Appellant’s preparation for a contested hearing.

The High Court conducted a fresh assessment of costs, deducting an amount reflective of the second day’s unused hearing time. It concluded that a reasonable and proportionate fee for the Appellant’s work was £19,468. The order of the SDT was quashed, and the Respondent was ordered to pay this reassessed figure to the Appellant.

Conclusion

The High Court’s judgment in Solicitors Regulation Authority Limited v Daniel Whittingham deconstructed the SDT’s approach to cost awards and reaffirmed the principles that should underpin such an adjudication. The case elucidates standards by which disciplinary tribunals must be guided when making costs orders and underscores the significance of a respondent’s full participation in regulatory proceedings. The reassessment of costs serves as a cautionary exemplar regarding the proper administration of justice and the conduct expected of parties in disciplinary contexts.

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