England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/07/2013

Approved Costs Judgment

Mr Justice Jeremy Baker :

1. Having determined the appeal, I am now asked by the parties to determine the issue of costs. At the conclusion of the proceedings before the Solicitors Disciplinary Tribunal, the SRA sought an order for costs against Mr Webb up to a maximum sum of approximately £28 000.00. The tribunal had before it a written statement and heard oral evidence from Mr Webb as to his financial circumstances. The tribunal summarily assessed the SRA's costs in the sum of £20 000.00 and made an order for costs in that sum against Mr Webb, not to be enforced without the leave of the tribunal.
2. The SRA now seek an order for costs of the appeal against Mr Webb in the sum of £22 018.20. There is a further witness statement from Mr Webb confirming that his financial circumstances remain the same, save that having lost his appeal, the suspension of his striking off will now be lifted. Although Mr Webb does not challenge an order for costs being made against him, it is submitted on his behalf that the amount of costs should be less and that any order should not be enforced without leave of the High Court. Both parties invite me to summarily assess the costs and determine the issue of costs on the basis of written submissions.
3. In civil proceedings where a party has lost its appeal, the normal order is that it should bear the costs of that appeal, by paying not only its own costs but that of the successful party. It is conceded by Mr Webb that this principle should apply to this case. However, it is pointed out that these are not ordinary civil proceedings but are ones brought by a professional regulator for the purposes of maintaining public confidence in the integrity of the profession. In these circumstances, unlike ordinary civil proceedings, it is submitted that when considering the form of any order for costs, the means of the unsuccessful solicitor should be taken into account.
4. This point has been considered previously by Mitting J. in Solicitors Regulation Authority v Davis and McGlinchey [2011] EWHC 232 (Admin), where he observed that,

"The SRA state, and I accept, that it is not their normal practice to pursue impecunious solicitors, or former solicitors, against whom orders for costs have been made which they cannot pay. If therefore, at the stage at which costs come to be considered by the tribunal, the financial circumstances of the solicitor are the same as when an order for costs comes to be enforced, then the SRA and so the profession will be no better off if means are taken into account by the tribunal, than if they are left to be investigated later."

5. Mitting J. went on to point out that it would be necessary for evidence of the financial circumstances of the solicitor to be provided and that the SRA should have the opportunity to test the evidence, if appropriate call evidence as to his means and to make submissions to the tribunal.
6. It is clear from Mr Levey's oral submissions to the tribunal and in his subsequent written submissions to this court that the practice of the SRA remains the same. In these circumstances, although this matter is now before the High Court after appeal, I consider that the principles enunciated by Mitting J. are ones that should apply to the present case. I am of course conscious that if orders for costs are either not made or not enforced then this is a burden on the profession as a whole. Moreover I am also conscious that Mr Webb has privately funded these proceedings both before the tribunal and on appeal. Albeit that out of a total costs liability to his solicitors and counsel of £39 062.00, the sum of £26 667.00 remains outstanding. However according to the evidence I have before me Mr Webb has no assets. He resides in rented accommodation, and as a result of the decisions in this case, he will now be unable to practice as a solicitor. Thus he faces the unenviable task of seeking employment outside the profession at the age of 62. Moreover his partner with whom he lives is likely to lose her income from her work with Mr Webb's former firm.
7. I have no other evidence from the SRA or elsewhere to contradict or undermine the evidence of Mr Webb as to his financial circumstances. I note that his oral evidence on this topic was not sought to be challenged in the tribunal, nor have I been asked to allow him to be cross-examined in the course of these proceedings. In these circumstances, on the basis that the SRA does not seek to pursue impecunious former solicitors against whom orders for costs have been made, the SRA will be no worse off in the event that this court makes an order that any order for costs should not be enforced without leave of the court.
8. In relation to the amount of costs which the SRA has claimed in their schedule, I consider there is merit to the submissions made on behalf of Mr Webb in relation to the costs of the respondent's notice. It was not only late in its provision, but raised matters upon which it was unnecessary to adjudicate. Taking this matter into account and having considered the overall costs claimed as against work reasonably required at various rates, I summarily assess the reasonable costs of the SRA in the sum of £20 000.00.
9. Therefore I order that Mr Webb should pay the SRA's costs of the appeal in the sum of £20 000.00, not to be enforced without further order of the High Court.