Limiting the cost of appealing

Here at the Reflective Practice we rarely advise clients to appeal to the High Court against a decision of the regulator.  Of course, one reason for that is that we nearly always get the result we are expecting and there is no need.  But in those rare cases where we disagree with what has happened we are hesitant to appeal.  One reason is that the High Court is very reluctant to get involved in the intricacies of professional regulation and has, time and time again, passed judgements which say, “well this does seem a bit of a rum do, but I’m not the regulator and I’m not prepared to say that the regulator got it wrong – after all, they are the specialists in this field.”  

Due deference

In legalese this is described as showing “due deference to the specialist panel” and we’ll give an example of how this works.  In 2012 Andrew went to the High Court on behalf of a teacher called Mr Henderson (no relation to Colin).  See R.(on the application of Henderson) v General Teaching Council for England [2012] EWHC 1505 (Admin)  for the full account or google for the tabloid take.  Andrew argued that Jamie’s prohibition was wrong because he had been treated more harshly than the countless similar cases that the regulator had dealt with in the past.    Andrew’s argument was good enough for the judge to comment, had I been a jury I think you might have had me” but, showing “due deference to the specialist regulator”, he was still not minded to allow the appeal.      

Scary Costs

Of course, sometimes it is right to appeal.   But even in cases where we think there is a strong argument we can never guarantee success.  Like most lawyers, when we say “strong argument”, we actually mean we rate your chances of winning at around 60%, i.e. there is a 40% chance of losing.  Losing in the High Court has consequences; the appellant is usually ordered to pay the other sides legal costs of defending the appeal.  Those are very rarely less than £10K for a one day hearing and often nearer £20K.    If you dont have union or insurance backing that is a daunting prospect, so daunting that even in cases where we think there is a strong argument, our clients (or their unions/insurers) may be reluctant to risk it.  

What was the point of that?

Earlier this year we represented another London headteacher; Greg Wallace.  Everything went swimmingly before the NCTL panel; Mr Wallace admitted everything that he ought to have admitted and there was a trial on the single issue – was he dishonest?  The panel considered this carefully and concluded that he wasn’t, but agreed with us that he was nonetheless guilty of Unacceptable Professional Conduct.  Thanks to our strategy, impressive testimonials and Mr Wallace’s insight, the panel felt able to advise the Secretary of State that there was no need to prohibit him in their carefully reasoned decision.  Unfortunately, the Secretary of State disagreed and still prohibited Mr Wallace from teaching.  

Unsurprisingly, Mr Wallace asked what the point of the panel system was if it could simply be ignored, and he wanted to appeal.  However, other teachers in a similar position have created some unhelpful case law which suggests that the Secretary of State is perfectly entitled to disregard the recommendation of his or her own specialist panel.  So the top and bottom of Mr Wallace’s case is that there is a strong argument to be had, but it is by no means certain he will win.  

Mr Wallace does not have any union backing and the prospect of losing an appeal and facing a costs order was deterring him from pursuing the appeal.   So to get round this we applied for an order effectively extending the no-costs regime which operated before the panel.  There is a new and little-used part of the Civil Procedure Rules that allows a judge to make an order in advance of an appeal limiting the costs that either side can recover from each other at the end of the hearing.  

The technical bit

CPR Part 52.19 (formerly Part 52.9A) states:

(1) In any proceedings in which costs recovery is normally limited or excluded at first instance,  an appeal court may make an order that the recoverable costs of an appeal will be limited to the extent which the court specifies.

(2) In making such an order the court will have regard to—

(a)  the means of both parties;

(b)  all the circumstances of the case; and

(c)  the need to facilitate access to justice.

(3) If the appeal raises an issue of principle or practice upon which substantial sums may turn, it may not be appropriate to make an order under paragraph (1).

(4) An application for such an order must be made as soon as practicable and will be determined without a hearing unless the court orders otherwise.

Our submissions were that the decision of the S of S had deprived Mr Wallace of his livelihood.  The effect of this was that he was not in a position to fund further legal representation without the assistance of friends.   The possibility of a costs order against him might cause him to not to continue an appeal he was advised had some prospects of success.  We asked for an order limiting costs to his issue fee in the event he won the appeal, and no order for costs in the event he lost.  We would have preferred a costs-shifting order (where S of S would still pay our costs if they lost) but previous Court of Appeal authority (JE Jamaica v SSHD 2014 EWCA civ 192) has ruled that is not the intention of the rule.

On behalf of the Secretary of State for Education Treasury Solicitors submitted that the application was misconceived as Part 52.19 did not apply to regulatory appeals and that in any event the appeal had no merit.

Mr Wallace’s application to rely on Part 52.19 was considered by the Honourable Mr Justice Green.  In his interlocutory judgement Mr Justice Green noted that the S of S ‘plainly has the means to defend the appeal with appropriate solicitors and counsel. The Appellant, to the contrary, has no ability independently to the fund the appeal without the assistance of friends. There is thus substantial inequality of arms, the Appellant personally has no independent or freestanding funds to pursue the appeal’.

Mr Justice Green also noted that the S of S had adopted a position in contrast with the recommendation of the Panel which heard the case.  He firmly rejected the assertion that a regulatory appellant could not apply under 52.19.  

Additionally, Mr Justice Green noted that Greg Wallace’s grounds of appeal were set out in a concise skeleton and were narrowly defined, so that any hearing could be conducted efficiently  (just like all our cases).  The order we sought was granted: ‘Finally, taking into account all relevant facts and matters in my judgement the costs cap is necessary to facilitate access to justice.  For these reasons I have granted the order sought’.

Part 52.19, has only been in force since 3 October 2016.  The notes in the White Book refer back to identical rule 52.9A, which was in force from 1 April 2013.  That provision has been used in other jurisdictions such as employment appeals and including the technology court Drummond v Revenue and Customs Commissioners [2016] UKUT 221 and a personal injury claim Parker v Butler [2016] EWHC 1251, but this case appears to be the first time that it has been used successfully in relation to an appeal from a regulator.

A little bit of certainty

Mr Wallace now knows, win or lose, his appeal will simply cost him our (very reasonable) fees for representing him which has given him the confidence to proceed to the hearing next month.

And we now know that in appropriate cases we can obtain similar orders to protect other litigants from the costs risks associated with High Court appeals

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