England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		30th March 2006

1. MR JUSTICE JACKSON: This is an application for costs. The facts giving rise to this application are as follows. The second respondent, Mr Simon Harrison, is a physiotherapist. In 2004 Mr Harrison was working as a locum physiotherapist at the Wrexham Maelor Hospital. Mr Harrison behaved inappropriately whilst working at that hospital. The first respondent in these proceedings, the Health Professions Council, brought disciplinary proceedings against Mr Harrison. Those proceedings came before the Conduct and Competence Committee of the first respondent and that committee is generally referred to as the "CCC".
2. The findings of the CCC were that Mr Harrison had committed the following misconduct whilst employed at Wrexham Maelor Hospital. (1) On a date between 28th June and 5th July 2004 he put his arm around Miss A and put her head on to his shoulder. (2) On a date between 28th June and 5th July 2004 he put his arms around Miss A, hugging her and placing his head on her chest. (3) On 5th July he (a) outstretched his hands towards Miss A's breast, (b) made various inappropriate comments of a sexual nature to Miss A in front of a patient and (c) made inappropriate comments in relation to a patient's genitalia. (4) On a date between 28th June 2004 and 5th July 2004 he attended at work smelling of alcohol. (5) On a date between 28th June 2004 and 5th July 2004 he attended at work smelling of alcohol. (6) On 5th July 2004 he attended at work smelling of alcohol.
3. The penalty imposed by the CCC was a direction that the registrar of the first respondent should annotate the register with a caution in respect of Mr Harrison for a period of three years. The Council for the Regulation of Healthcare Professionals took the view that the penalty imposed and the disposal of that disciplinary matter was unduly lenient and did not properly protect the public interest. Accordingly, the Council for the Regulation of Healthcare Professionals brought an appeal against the decision of the CCC pursuant to Section 29 of the NHS Reform and Health Care Professions Act 2002. The appeal was launched by a notice of appeal which is sealed and dated as received in the Administrative Court Office on 8th August 2005. That date was three days within the time limit for the CRHP to bring such proceedings. There was no letter before action sent by the Council for the Regulation of Healthcare Professionals to the first respondent. There was, however, a phone call which preceded the commencement of proceedings.
4. The appellant's notice was served on the first respondent by a letter dated 10th August. On 19th August a skeleton argument, prepared by the appellant's counsel, was sent to the solicitors for the first respondent. Thereafter there was some debate in correspondence and, by a letter dated 5th September 2005, the solicitors for the first respondent indicated in principle its agreement to compromise. There was some delay, perhaps understandably, before the second respondent, Mr Harrison, accepted this position, but in due course he did so and a consent order was drafted along the lines that had been envisaged in the letter from the solicitors dated 5th September 2005. That consent order, which this court has approved and made today, provides as follows:

"1. The Appellant's appeal is allowed and the decision of the First Respondent's Conduct and Competence Committee ("CCC") on 16 June 2005 to caution the Second Respondent is quashed.

"2. The matter is remitted to the same CCC for further consideration and redetermination of sanction in line with the following directions:

(1) The CCC shall have regard to the Appellant's Notice, the Appellant's skeleton argument and any other submissions offered by the First and Second Respondents.

(2) The CCC in giving its new determination shall set out its full reasoning as to why its decision (whatever it may be) is appropriate having regard to the protection of the public;

"3. Costs to be agreed or ordered".

5. At the hearing today, the appellant, that is the Council for the Regulation of Healthcare Professionals, seeks an order that the first respondent, the Health Professions Council, do pay the appellant's costs up to 5th September 2005. No application for costs is made against the second respondent. This seems to me to be entirely reasonable in all the circumstances of this case, not least the fact of the second respondent's means and the fact that some time ago he has consented to this appeal being allowed.
6. The first respondent opposes the application for costs on a number of grounds. The first argument deployed by the first respondent is that, although the first respondent has consented to this appeal being allowed and the matter being redetermined by the CCC, nevertheless there has been no judicial determination, after argument, that the appeal should succeed. Furthermore, says Mr Patel on behalf of the first respondent, it may very well be that if there had been a full contest the appeal would have failed but there were sensible reasons, not least the saving of costs, which made it appropriate for this matter to be resolved by consent. Therefore, says Mr Patel, the proper order is no order as to costs.
7. Mr Patel cites two well-known authorities on the costs points. The first is the decision of Mr Justice Simon Brown in R v Liverpool City Council ex parte Newman and Others, 13th July 1992. The second decision which Mr Patel cites is Boxall v Mayor and Burgesses of the London Borough of Waltham Forest, 21st December 2000. It seems to me that the statements of principle in Boxall reflect and build upon the reasoning in the Liverpool City Council case. I shall therefore limit myself to setting out the crucial passage in Boxall which sets out the principles upon which Scott Baker J proceeded in that case.

"Having considered the authorities, the principles I deduced to be applicable are as follows:

(i) the court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.

(ii) it will ordinarily be irrelevant that the Claimant is legally aided;

(iii) the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost;

(iv) at each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.

(v) in the absence of a good reason to make any other order the fall back is to make no order as to costs.

(vi) the court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage."

8. Mr Patel urges upon me the wisdom of bodies such as the first respondent conceding an appeal where there are properly arguable grounds and allowing the matter to be redetermined by the relevant disciplinary committee rather than contesting the appeal in this court through to a conclusion. In the circumstances of this particular case, having reviewed the material before me, I have come to the conclusion that, if this appeal had proceeded, really it was bound to succeed. Therefore, on the facts of this case, I reject Mr Patel's first argument.
9. There is, however, a point of principle which arises from his first argument which may need to be considered on a future occasion: is it open to a regulatory body to concede an appeal against the decision of its independent disciplinary committee in circumstances where (a) the disciplinary decision was favourable to the accused professional person and (b) the regulatory body considers that there are or may be good grounds for resisting the appeal? This is not an issue which arises for decision in this case. However, it is an issue which may arise in other cases when an argument based upon the Boxall line of authorities is advanced. It should be borne in mind that this court can only make an order quashing the decision of a disciplinary committee, even by consent, if this court is satisfied that it is proper to make such an order and allow an appeal brought by the Council for the Regulation of Healthcare Professionals; see for example R (Council for Regulation of Healthcare Professionals v (1) General Medical Council and (2) Rajeshwar) [2005] EWHC 2973 (Admin).
10. I now come to the second argument advanced by Mr Patel on behalf of the first respondent. This argument is that the claimant failed to send any letter before action. If matters had been properly ventilated in correspondence, a great deal of costs could have been saved and the proceedings in this court could have been reduced to a mere formality. As it is, the first respondent did not know what case it had to meet until after proceedings had been brought. In relation to this argument, Ms Richards, who appears for the appellant, submits that there is no need for a letter before action to be sent by the Council for the Regulation of Healthcare Professionals to any regulatory body before the institution of proceedings under Section 29 of the 2002 Act. Ms Richards points out, in my view correctly, that there is no pre-action protocol which applies to such an appeal. Furthermore, if one looks at the nearest pre-action protocol to this case (the pre-action protocol for judicial review), one sees the following passage in paragraph 6:

"This protocol will not be appropriate where the defendant does not have the legal power to change the decision being challenged, for example decisions issued by tribunals such as the Immigration Appeal Authorities."

11. I have come to the conclusion that Ms Richards is right and there is no protocol which requires the merits of the case of the Council for the Regulation of Healthcare Professionals to be debated in correspondence. That, however, is not quite the end of the matter because the Practice Direction/protocols provides as follows, in paragraph 4.1.

"In cases not covered by any approved protocol, the court will expect the parties, in accordance with the overriding objective and the matters referred to in CPR 1.1(2)(a), (b) and (c), to act reasonably in exchanging information and documents relevant to the claim and generally in trying to avoid the necessity for the start of proceedings."

It is generally speaking good practice in all classes of litigation for the claimant or prospective claimant to inform the prospective defendant of the nature of the claim which is to be brought and the grounds upon which the claim is to be brought.

12. Let me now consider specifically the position of the Council for the Regulation of Healthcare Professionals. This body is under a time limit for the commencement of proceedings under Section 29 of the 2002 Act, which is sometimes a time limit of 28 days and sometimes a time limit of 56 days. The Council for the Regulation of Healthcare Professionals has to consider some 600 to 700 determinations of various disciplinary bodies each year. Upon receiving those determinations, very often the Council needs to obtain further information; for example, in this case the Council needed to obtain a transcript of proceedings. Very often the Council needs to obtain exhibits and other materials; the matter has to be considered; a report must be prepared within the Council for the Regulation of Healthcare Professionals and thereafter a meeting of three members of that body must be convened in order to decide whether or not to bring an appeal under Section 29 of the 2000 Act. Given the volume of work which the council is handling and given the steps which need to be taken before launching an appeal, and given also the time limits and the usual need to obtain supplementary material, I do not think that in the general run of cases it is practicable for the Council for the Regulation of Healthcare Professionals to debate the merits of individual cases in correspondence with the various regulatory bodies. In those cases where this can be done, that is a good practice and I commend it. However, I do not think that this court should impose a general obligation upon the Council for the Regulation of Healthcare Professionals to engage in such pre-action correspondence and to attach to that obligation a costs sanction. I consider that such an approach is unworkable, given the statutory scheme and the volume of business which the Council for the Regulation of Healthcare Professionals is handling.
13. Let me now consider the second point. Even if the Council for the Regulation of Healthcare Professionals persuades a regulatory body that a decision of its disciplinary committee should be quashed, there is still a need for court proceedings to ensue. The proceedings will need to be brought, the grounds will need to be set out and, even if there is a consent order, the judge will still need to be persuaded that such a consent order ought to be endorsed by the court. Having considered all of these matters, I conclude that the failure by the Council for the Regulation of Healthcare Professionals to send a letter before action is not in itself a ground for imposing any kind of costs sanction or for depriving the Council for the Regulation of Healthcare Professionals of its costs if it is otherwise appropriate to award such costs.
14. Now let me turn to the appropriate costs order in this case. Counsel have kindly extended their research during the short adjournment today and have furnished me with two additional authorities which I regard as relevant. The first is Council for Health Regulatory Excellence v (1) General Medical Council and (2) Hossam Basiouny [2005] EWHC 68 (Admin) and secondly Council for the Regulation of Health Care Professionals v (1) General Dental Council and (2) Fleischmann [2005] EWHC 87 (Admin). In Basiouny the Professional Conduct Committee of the General Medical Council (GMC) reached a decision in disciplinary proceedings which was unduly lenient. There was an appeal by the Council for Health Care Regulatory Excellence (the previous name for the Council for the Regulation of Healthcare Professionals). That appeal was successful. In relation to the issue of who was the proper respondent to the appeal, Richards J said this:

"Mr Shaw put forward a number of answers to that submission. First, by section 25(2) and (3) of the 2002 Act, the Council's functions under the Act relate to a number of 'bodies' (referred to as 'regulatory bodies') which include the GMC. It would be very odd if the 'body' referred to in section 29(7)(a) were different from one of the bodies referred to in section 25. Secondly, under the Medical Act 1983 the GMC is a body corporate with a number of statutory committees, one of which is (or was at the material time) the PCC. It is the GMC which has legal personality and is therefore the 'body' that takes the relevant decision, albeit that it takes the decision through one of its committees. Further, as a matter of practical reality, the GMC is the appropriate respondent in just the same way as, for example, a local authority is the proper defendant to a judicial review claim in respect of a decision taken by its planning committee.

"66. In my judgment the GMC is the proper respondent, for the reasons given by Mr Shaw."

15. In relation to the argument on costs, the appellant applied for his costs against the GMC. Richards J said this:

"So far as costs are concerned, it is plain, in my judgment, that the Council must get its costs of the appeal. It was an appeal properly brought in the discharge of the Council's functions and an appeal on which the Council has succeeded. There is no reason why costs should not follow the event. There is a question, however, as to who should pay those costs or how those costs should be allocated between the other parties. It seems to me that in respect of the period until the GMC indicated that they would not oppose the appeal, and indeed supported the Council's stance, it is right that the GMC should pay the costs. The need for an appeal was occasioned by the erroneous approach, as I have held it to be, of the GMC's committee."

16. The case of Fleischmann concerned a dentist. The Professional Conduct Committee of the General Dental Council reached an unduly lenient decision. The Council for the Regulation of Healthcare Professionals brought an appeal pursuant to Section 29 of the 2002 Act. The General Dental Council (GDC) adopted a neutral stance. The appeal brought by the Council for the Regulation of Healthcare Professionals succeeded. Newman J held that the first and second respondents should be jointly and severally liable for the costs of that appeal.
17. I find the approach adopted in those two cases to be helpful and to illumine the approach which I should adopt in this case. In this case, as in those two cases, the original error and the original need for proceedings to be taken arose because of the mistake made by a disciplinary committee for which the first respondent, the regulatory body, is responsible. It is of course open to the regulatory body and the individual professional, in this case and in other cases, to mitigate the costs of an appeal under Section 29 of the 2002 Act by conceding at an early stage that the appeal should be allowed. Indeed, that course has been taken in the present case and thus costs have been reduced.
18. It seems to me that the proper order for costs in this case is that which is sought by the appellant, namely that the first respondent should pay the appellant's costs up to 5th September 2005. I reach this conclusion for three reasons. One, the first respondent is, so far as these proceedings are concerned, responsible for an error which was made by the CCC, even though that is an independent committee. Two, the first respondent did not concede that the appeal should be allowed until 5th September 2005. Three, proceedings are, and always have been, necessary to be launched and justified both in an appellant's notice and in a skeleton argument in order to demonstrate that this court should make the consent order which is sought. I should also add that the conclusion which I have come to in this case seems to me to be consistent with the reasoning of Sullivan J in R (Council for Regulation of Healthcare Professionals v (1) General Medical Council and (2) Rajeshwar) [2005] EWHC 2973 (Admin); Council for Health Regulatory Excellence v (1) General Medical Council and (2) Basiouny [2005] EWHC 68 (Admin); and Council for the Regulation of Health Care Professionals v (1) General Dental Council and (2) Fleischmann [2005] EWHC 87 (Admin).
19. Right, where have you got to on quantum?
20. MS RICHARDS: My Lord, I do not think we have got anywhere. I do not know whether Mr Patel has any observations to make on the schedule in light of your Lordship's ruling or not.
21. MR PATEL: My Lord, I do. Despite your Lordship's ruling, we would ask the costs to be -- if they are being summarily assessed we would ask that the basic principles of the overriding objective of proportionality be borne in mind when deciding the amount of the costs, especially where, effectively, this case has been compromised on the basis of my client's offer, which was made at the first available opportunity that he got in proceedings.
22. In terms of the schedule my Lord, could I take you through the details of the schedule? It is always, my Lord, difficult to pick through schedules like this in terms of summary assessment but I make the following points. On page two, between 26th July and 28th July, some almost 14 hours were spent on the Section 29 report. I presume that was a report that was made on behalf of Bevan Brittan, solicitors for the Council. We say that is excessive, especially given the Council's position, as it always has been, that the issues in this case have been clear. It has been obvious that this was a flawed decision and especially given your Lordship's determination that this was a case in which the appeal clearly would have succeeded. So we say that there is no need certainly for the amount of 14 hours to be spent there.
23. 4th August 2005 is three-and-a-half hours of notes for the Section 29 meeting. That, my Lord, is, I think, contained in the appeal bundle. I think you were passed a copy of it. It is at Tab 11. It is a mere seven pages long and we say, given that it is a short note -- we make two points. The first is that both the partner and the solicitor attended that Section 29 meeting, about which I will make observations in a minute, but there is no need for the partner to make these notes. That should have been done by a solicitor. The second point is that it is a short note: it is seven pages long. The idea that it would have taken -- presumably this comes from a handwritten note taken at the time -- the idea that it would have taken three-and-a-half hours to compile this, we say, is disproportionate. So we would ask you to reduce that down on those two bases.
24. If you turn over the page, my Lord, to page three. The witness statement that is the subject of the 4th August entry and the 5th August entry is the witness statement again, which is at Tab 1 of that bundle, the statement of Julie Stone. My Lord, that is a very brief four-page statement. It is difficult to know why it totalled some -- four hours, almost, were spent on that and in fact we also take issue with the entries on 5th August and 8th August in terms of the grounds of the statement. An additional almost nine hours is claimed there and we say that that is not only just for the statement but also for the grounds. Well, you have seen the grounds in this case. They are brief. There is no reason why that should have taken nine hours to draft, especially given that the Section 29 report, my Lord, would have contained the necessary information or the necessary details and so one would have thought that the grounds could have quite easily be taken from that report. So to spend another almost 13 hours on that we say is excessive and disproportionate.
25. My Lord, a further five hours or roughly that is spent on perusing a skeleton argument between the partner and the solicitor. Again, my Lord, that is a skeleton argument which was drafted by counsel, not one which is prepared by --
26. MR JUSTICE JACKSON: Sorry, where is perusing the skeleton?
27. MR PATEL: Well, I suspect it is the 18th August through to 19th August 2003 and that is a total of five hours. If one looks at the skeleton argument, the basic analysis is exactly the same as that used in the grounds. So it is a regurgitation of what is in the grounds, added to which is the sort of summary of the legal principles, with which my Lord will be familiar, and most people will be familiar, especially these solicitors, given that they act for the CHRP on a regular basis. So we say it is excessive and disproportionate for the solicitor and the partners to spend an additional five hours checking the skeleton argument.
28. My Lord, if you turn over the page to page four, it is difficult to respond to this section because we just do not know a lot of the time what the letters relate to but we say that a total of £1,000 in respect of letters for a period of just under a month is excessive. It certainly is not required and certainly is not warranted and we would ask you to reduce that figure -- we would ask by as much as 50 per cent but, again, it is difficult when we do not know really what these are all about.
29. And then lastly we come on to page five and, my Lord, we would ask you disallow the costs of either -- well, the partner attending the Section 29 meeting. This was not a difficult case. It did not require both the partner and the solicitor to attend that meeting.
30. MR JUSTICE JACKSON: You would prefer just the partner? Alternatively, the costs of the solicitor attending the meeting.
31. MR PATEL: Well, I think this is a case which could have be dealt with by a solicitor rather than a partner.
32. MR JUSTICE JACKSON: Solicitor obviously means assistant solicitor?
33. MR PATEL: It does. So we would ask you to disallow the costs of the partner. I appreciate that there is not much difference here but one of those should be disallowed and, in relation to 8th August, in terms of the trainee attending the court -- I infer that that was to lodge the bundle. Well, that is a job that ought to be done by an outdoor clerk rather than a trainee. There was not any particular need for a trainee to do that job. These proceedings were done three days before the time had expired.
34. MR JUSTICE JACKSON: What would the figure be if you changed that in respect to an outdoor clerk?
35. MR PATEL: The outdoor clerk is part of the overhead so it would be overpayment of fees. It would be charged.
36. MR JUSTICE JACKSON: Thank you.
37. MR PATEL: So we would ask you to disallow that in its entirety.
38. MR JUSTICE JACKSON: Would you bear with me a moment? This is an order I think I have to sign in another case. (pause)
39. MR PATEL: My Lord, those are the detailed observations I make on the schedule.
40. MR JUSTICE JACKSON: Thank you very much.
41. MS RICHARDS: My Lord, first of all it may be pertinent to note, when your Lordship is considering the HPC's objections to the amount of costs, what the amount of costs is that the HCP would have sought to claim from the appellant in relation simply to the costs of today, because the HPC have served on us a schedule. I do not know if your Lordship has seen it.
42. MR JUSTICE JACKSON: I have not seen it but I cannot conceive how the HCP's costs of today could possibly be relevant to your proper costs in July and August of last year. Furthermore, I think Court of Appeal decisions indicate that that is not the right approach.
43. MS RICHARDS: Well, my Lord, in so far as Mr Patel sought to suggest that there is something excessive about the sum of some 15-and-a-half thousand pounds being incurred in relation to the giving of legal advice, the drafting of proceedings, the drafting of a skeleton argument, correspondence with both parties issuing proceedings and so on: well, I would reject that. It is not an unreasonable or obviously excessive sum, given the work that was undertaken during the period. My Lord, I hear what your Lordship has to say; if your Lordship does not want me to make an observation --
44. MR JUSTICE JACKSON: No, you say whatever you wish, Ms Richards.
45. MS RICHARDS: Well, my Lord, simply that the HCP's costs simply for today, they claim, was something in the region of £4,300, and that is not including VAT on counsel's fees.
46. MR JUSTICE JACKSON: Well, that may be relevant when we come to hear your application as to costs if you make one in relation to today.
47. MS RICHARDS: Well, my Lord, it may. In terms of issues such as overall proportionality -- because Mr Patel's submission was that your Lordship should, in deciding on the amount of costs, have regard to the issue of proportionality -- in my submission it is pertinent to note that the first respondent's costs simply of today, they say, would have been in excess of £4,000 and, in light of that, it is difficult to see how it could be said that there is something about the figure of 15-and-a-half thousand which is somehow disproportionate.
48. My Lord, in relation to the particular points, I do need a couple of minutes to take instructions because I have heard these for the first time in court this afternoon. (pause)
49. Thank you, my Lord, for giving me that opportunity. My Lord, first of all, in relation to page two, my learned friend says that too long was spent on matters of research and analysis. My Lord, this is not just a question of looking at the decision of the CCC itself and reaching a snap judgment on it. The solicitors have to look not just at the decision but at all the underlying material and that means going through the transcript and any statements and other documentation that the CCC had before it because, clearly, one has to look at the underlying material and not just the decision itself. My Lord, that is not in my submission an unreasonable period of time to be spent in considering a case of this kind. All these cases are important and, in fairness to the individual professional, as well as given the public interest remit of the appellant, proper careful consideration needs to be given to the documentation in order for analysis and advice to be given. In so far as the item for notes of the Section 29 meeting is concerned: towards the bottom of page two, my Lord, that is not just a note of any old meeting or some formal and unimportant meeting; it is a very important meeting. It is a meeting which then becomes part of the material which goes to the court, so it is a formal document which it is important to get right and, in my submission, there is nothing inherently unreasonable or excessive in the amount of time there spent on it. Nor, in my submission, is there anything in relation to page three that is excessive or unreasonable in relation to the time spent on the drafting of the witness statement. It may not be a huge witness statement but it is not a huge length of time that is spent on it and, again, these are important cases where it matters to get the position right and to ensure that the court has the material which it needs before it.
50. Then my Lord, in as far as the skeleton is concerned: my Lord, this is a case in which the draft of the skeleton did go back and forth between counsel and solicitors. Observations and amendments were made which were reflected in the final draft. Indeed, it is precisely because this is an area where it is not a particularly common area of jurisprudence; it is area where the solicitor may have particular input and insight to the skeleton and to the legal arguments because of their experience in dealing with these cases and, therefore, again there is absolutely nothing wrong in the drafting of the skeleton involving that kind of consideration in the two-way process, rather than the solicitors simply not bothering to look at the contents of the skeleton or making any contribution to it. Then in so far as the correspondence -- my Lord, sorry, just before I leave the skeleton, it is not fair to say it is simply a regurgitation of the grounds. It is far more than that and, as any proper skeleton should do, it sets out the statutory framework both in relation to the 2002 Act and in relation to the HPC and there have not in fact been many cases against the HPC, so it is not a case where that legal jurisdiction is particularly well-known. Most of these cases involve the GMC and the skeleton sets out as well the case law and the correct legal approach and, quite properly, it does not simply regurgitate the grounds.
51. In so far as the correspondence on page four is concerned, that is a perfectly reasonable and sensible amount of correspondence, given what was happening at this stage and, again, there is nothing unreasonable or excessive about that. Your Lordship has seen the correspondence, or indeed most of the correspondence in the bundle. There were two respondents and this was at an early stage of the proceedings when various matters were being addressed in correspondence, including the initial stance of various parties.
52. My Lord, then lastly, in relation to page five, it is perfectly appropriate in my submission to have had both a solicitor and partner at the Section 29 meeting. It is a fundamentally important meeting where the Council takes the decision whether to refer the matter to the court and has both the assistant solicitor, who will have the day-to-day conduct of the case, and the partner, who has an overview and expertise, present to advise the council and, again, nothing wrong with that and, in my submission, nothing wrong or unreasonable with a trainee being utilised for the issue of proceedings. So, my Lord, in my submission the schedule should stand or there should not be any significant amendments to it.
53. MR JUSTICE JACKSON: I am asked summarily to assess the costs of the appellant in these proceedings up to 5th September 2005. The appellant has produced a detailed schedule of costs and Mr Patel, on behalf of the first respondent, has suggested that, in eight areas, the costs in this schedule should be reduced. I am concerned, for present purposes, not with the question of what it is reasonable for the Council for the Regulation of Healthcare Professionals to pay to its own solicitors but rather the question of what it is reasonable for the Council of the Regulation of Healthcare Professionals to recover as against the first respondent.
54. The first item to which Mr Patel directs his fire is a collection of items on page two of the schedule relating to the report which was prepared and research which was done before the decision was taken to bring this appeal. Approximately 14 hours of work were devoted to this by solicitor, partner or paralegal. I consider that that time was properly spent and I do not make any reduction to that. The second item which is criticised is three-and-a-half hours spent by a partner preparing notes of the Section 29 meeting. I have these notes at Tab 11 of the bundle. It is quite true that the notes are only seven pages long. However, one can tell from looking at a document that a significant amount of work was required by an experienced solicitor and I do not think that this item of three-and-a-half hours by a partner should be reduced. The third item which Mr Patel criticises is the time spent on drafting the witness statement of Ms Julie Stone and the fourth item which Mr Patel criticises is the time spent drafting the grounds of appeal. To some extent, these two pieces of work are merged in the schedule. It seems to me that about nine hours in all was spent on these two tasks and about £1,400 is attributable to it. I consider that, as between the parties, the sum of £1,400 or thereabouts should be reduced to about £1,000. Therefore, I deduct £400 in respect of items 3 and 4.
55. The fifth item which Mr Patel criticises is the time spent by a partner and an assistant solicitor in perusing a skeleton argument drafted by counsel. It appears that the total time on this task spent was approximately four-and-a-half hours and the sum attributable to this is in the region of £800. I consider that this should be reduced by £200.

The sixth item which Mr Patel criticises is costs incurred in relation to letters and emails sent by the appellant solicitors during August of 2005. These costs amount to £1,055.50. It seems to me that there are one or two crucial letters in this period. It may have been entirely reasonable from the point of view of the appellant to have extensive communications with its own solicitors but I do not think that as between the parties a full sum of £1,055.50 can be justified and I would reduce that figure by £500.

The eighth item which Mr Patel criticises is the use of a trainee solicitor to lodge the bundle and other documents with the court. Mr Patel submits that this should have been done by an outdoor clerk and that would have formed part of the overheads. I agree with that submission and it seems to me to be reasonable to take a round figure of £400 as the appropriate reduction for that.

Ms Richards submits that I should take a more sceptical view of Mr Patel's point because the costs which the first respondent has incurred today in attending this hearing are some £4,500. In my view, the costs which the first respondent has incurred attending the hearing today are completely irrelevant to the exercise I am engaged upon, namely assessing the appellant's costs in respect of a different period of time, namely the outset of this litigation. Accordingly, I decline to take that factor into account.

I have come to the conclusion that the costs sought by the appellant should be reduced by £1,500 for the reasons set out above. This will lead to a corresponding reduction in VAT. The net figure before VAT for the appellant's costs is therefore reduced to £14,350.28. I assess the appellant's costs in that sum, together with appropriate VAT, which someone with a calculator will work out.

56. MR PATEL: My Lord, could I just mention one point? My Lord, you did not rule on whether the appellant's should have both the solicitors' costs and the partners' cost at the meeting on 3rd August.
57. MR JUSTICE JACKSON: You are quite right. That was a slip. It was in my note but I omitted it when giving a ruling. I take the view that it was entirely proper for both the partner and an assistant solicitor to attend that important meeting.
58. MR PATEL: My Lord, thank you.
59. MS RICHARDS: Sorry, my Lord, could your Lordship just repeat again the figure? 14,350 and...?
60. MR JUSTICE JACKSON: I have the wrong figure, have I? I wish to reduce your costs before VAT by £1,500.
61. MR PATEL: My Lord, if I could help, that gives a figure of £10,713 and then you add the VAT on to that figure. I am just doing it in stages. (pause)
62. My Lord, that is a figure of £1,874.58 in terms of VAT. £1,874.78. So that makes the total costs of Part A at 12,587.78. If you add that on to the total costs of Part B, which stays the same, you get 13,703.28. (pause)
63. MS RICHARDS: My Lord, whilst that figure is just being checked by my instructing solicitor -- although it certainly sounds about right -- that leads simply to the costs of today. My Lord, I do ask for an order that the first respondent should pay today's costs. The argument has been taken up with the question of costs. The appellant succeeded; costs should follow the event. My Lord, we do not have a schedule in relation to that so it will have to be assessed if not agreed.
64. MR PATEL: My Lord, there is no schedule that has been provided by the appellant in this matter. It is usual to have a schedule in these terms. I say that that is indicative of the fact that it is a late change of mind for the appellant to seek their costs for today. They certainly did not indicate it in correspondence. When one looks at the correspondence, it was their stance that they would seek their costs up until 5th September and then not the costs of today. So we cannot be surprised by the application.
65. MR JUSTICE JACKSON: You cannot be surprised, Mr Patel? You cannot say that with a straight face. Everybody knows that, when there is an argument about a matter like this, whichever side wins it seeks its costs. It is inconceivable --
66. MR PATEL: Well, my Lord --
67. MR JUSTICE JACKSON: You may say they should fail but you cannot claim to be surprised.
68. MR PATEL: Well, my Lord, I am, given that they did not ask for them in the correspondence. I mean, I do not put it higher than that. I expected it in the correspondence, I have to say, but they have not and therefore I am surprised they make it today, given that they had not indicated it in their correspondence. But I say that they should fail for that reason and I say that they should fail because they have not provided a schedule of costs and it is certainly not appropriate for the costs of today, for further costs to be expended on a detailed assessment.
69. MR JUSTICE JACKSON: This is an application made by the appellant for the costs of the hearing today. The first respondent opposes that application on the grounds, first, that the claim for costs was not heralded or intimated in correspondence and, secondly, because the appellant has not produced any schedule of costs which would enable this court to assess costs summarily. So far as the first point is concerned, I do not think that the appellant's failure to indicate in correspondence that if it won today it would seek costs really is a reason for refusing the appellant its costs. It is my invariable experience on an application like this that whichever side is successful seeks its costs. I do not believe that anybody in the first respondent's camp can be remotely surprised by the application for costs which has been made.
70. Secondly, the fact that there is no schedule of costs produced today means that I cannot summarily assess the costs of today's hearing. In my view, the proper way to deal with this matter is to direct assessment. The appellant and the first respondent have come to court today in order to contest an issue of principle. Formidable arguments have been advanced on both sides and the appellant has succeeded. In my view, in all the circumstances, costs should follow the event. I order the first respondent to pay to the appellant the appellant's costs of today, to be assessed on the standard basis if not agreed.
71. MS RICHARDS: I am grateful and the figure given by Mr Patel earlier in relation to the main costs appears to us to be entirely correct.
72. MR JUSTICE JACKSON: So what is the total figure?
73. MS RICHARDS: It is 13,703.28. I am grateful to him for getting to the maths more quickly than me.
74. MR JUSTICE JACKSON: Very well, I summarily assess the appellant's costs up to 5th September 2005 in the sum of 13,703.28.
75. Thank you all very much.