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 WC2A 2LL
		8 October 2014

MRS JUSTICE PATTERSON: There are three matters before the court which are:

1) What steps, if any, should the court take today on what has become known as the appointments ground?

2) Should the defendant be disbarred from further participation in the proceedings?

3) A determination of Ground Two in the substantive judicial review claim.

Background

A claim for judicial review was issued by Miss Lonsdale, formerly a practising member of the Bar, against the Bar Standards Board as defendant, and made on 14 January 2010.

Permission was granted at a renewal hearing by Davis J, as he then was, on 16 June 2011, in the following terms:

1) Permission be granted on Ground 2 only, permission is refused on all other grounds.

2) The matter is to be listed before a High Court judge with a time estimate of 1 hour, and to be expedited.

Davis J set out the background to the matters before him in paragraph 4 of his judgment.

"4. The root cause of both sets of proceedings are previous disciplinary proceedings commenced against Ms Lonsdale and consequent upon a complaint made by a former client, Ms Sherman, received by the Bar Standards Board on 23rd August 2006. After protracted interlocutory proceedings, the matter eventually came before a disciplinary tribunal chaired by an experienced retired circuit judge which, on 19th October 2009, found five charges of professional misconduct against Ms Lonsdale proved. Those charges were variously charges of misconduct contrary to certain parts of the Bar Code of Conduct and in breach of the Public Access Rules 2004.

"A further charge of conducting litigation in breach of the Code was found not proved. It is important to stress that absolutely no finding of bad faith or dishonesty or anything of that kind was made against Ms Lonsdale. Indeed, it is worthy of note that the sanction imposed was simply confined to directing that Ms Lonsdale be advised as to her future conduct, in particular in respect of compliance with the Public Access Rules. She was also ordered to pay costs assessed in the sum of £4,379."

Later in his judgment, Davis J quoted also from paragraph 40 of the disciplinary tribunal decision in paragraph 22 of his judgment. That reads:

22. The Tribunal then went on to consider each charge separately. As I have said, it found five of the charges proved but the third charge, relating to alleged conducting litigation in breach of the code, was dismissed. I think it important, and indeed only fair to Ms Lonsdale, to record in this judgment what the Tribunal found as to why these breaches occurred. At paragraph 40, in dealing with the sentence and reasons, the Tribunal said this:

"We bore in mind mitigating factors, namely our conclusion that the Defendant's principal motive in acting as she did, had been a desire to assist her lay clients rather than financial gain for herself; the Defendant's long period of practice at the Bar and the absence of any previous disciplinary findings together with the testimonial references provided to us and a letter to the Defendant from one of her lay clients expressing, in very fulsome terms, his gratitude to her for her work done upon the case."

In other words, not only was there very substantial general mitigation, but it is clear that Ms Lonsdale's motives in acting as she did was not occasioned by her own personal considerations. At the same time, the Tribunal necessarily had to note that, so far from expressing any regret or apology, Ms Lonsdale had vigorously disputed everything that had been alleged against her.

Paragraph 40 of his decision dealt with whether permission should be granted at this point. That reads:

"40.Overall, in my view, this point does merit full argument. It may indeed be an argument that is assisted by the appropriate evidence from the Bar Standards Board as to the objective circumstances in which this rule was made and the prevailing practices at the time. In my view, the point is sufficiently arguable to justify a grant of permission. I do well bear in mind the relative smallness of the amount involved. I also by no means overlook the complete lack of proportion that seems to have attended previous proceedings in which Ms Lonsdale has been involved. But, ultimately, this is a matter of jurisdiction and of vires and, moreover, it may have a bearing on other cases where a similar point is raised. Accordingly, I think that this is a matter on which permission should be granted."

Ground 2 of the claimant's judicial review challenge is whether the disciplinary tribunal has the power to order her to pay the the costs when those costs are in essence the costs of running the tribunal, namely, the costs of the various directions hearings; costs of the reviews; costs relating to the tribunal clerk; shorthand writer's fees; lay members fees, out of pocket expenses.

Before I consider that aspect of the claim, there are various other matters that need to be dealt with. First, expedition. It is three and a quarter years since expedition was ordered. Clearly it has not happened. In the interim, Miss Lonsdale has sought to amend her grounds of claim, so as to include one that will contend that the disciplinary tribunal proceedings (because the tribunal consisted of members who were improperly appointed) was invalid. She gave formal notice of her application to amend her grounds on 19 June 2012. By then, the defendant had served, somewhat late, but in respect to which Charles J, on 31 March 2014, granted an extension of time detailed ground of resistance. They were served on 20 September 2011.

On 3 April 2014, Charles J gave directions for this trial, which included at paragraph 3 that the court would determine at the substantive hearing: (a) Ground 2 of the claimant's application for judicial review and (b) whether the claimant should have permission to rely on the appointments ground (and if so, whether it succeeds).

On 7 May 2014, the defendant was to file and serve a paginated and indexed bundle of all the relevant documents for the hearing of the judicial review.

The Appointments Ground

In relation to the appointments ground, it is common ground that no decision should be made on that today. That is because there are currently outstanding applications with the Court of Appeal for permission to appeal in R (on the application of) Leathley & Ors v Visitors to the Inns of Court & Anor [2013] EWHC 3097 (Admin) and related cases. The outcome of that hearing is such that if permission is granted to appeal then the claimant's case may be affected.

In those circumstances, the parties agreed that it was not sensible to proceed with that aspect today and that matter, therefore, should be stood over. Once the outcome of the permission to appeal hearing is known, the defendants, who act in that litigation also, should notify the Administrative Court within 7 days of that decision, and the papers then be placed before a judge of the Administrative Court to consider whether to grant permission on that ground within 14 days thereafter. I give both parties liberty to apply to make representations, if so advised, in relation to the grant of permission after the decision in Leathley & Ors is known. That is the first matter before the court.

Should the defendant be disbarred?

The second matter before the court relates to an application by the claimant to have the defendant disbarred from further participation in this action.

There has been disquiet on the part of the claimant about whether all relevant discovery ordered by Charles J has taken place and, indeed, whether a full bundle of all relevant documents has been filed and served. So much so, that on 8 September 2014, the claimant made an application that the permission granted by Charles J to permit the defendant to continue to participate be rescinded, or, alternatively, that the defendant be debarred from further participation in the claim and that they be required to meet their own costs and bring this matter to a close.

The basis for that application is that the claimant is now a full time carer for her mother, who will be 93 on 10 October 2014. The claimant deregistered from practice at the Bar in early 2013. She says that the directions hearing before Charles J was on a date when the defendant knew she could not attend and so there was a breach of the rules of natural justice.

The detailed grounds of resistance had been due, by agreement, to be served upon her on 13 September 2011 and was received by the claimant, as set out, on 20 September 2011. The defendant had issued an application to extend time for service on 14 September 2011, but failed to serve it upon the claimant. There was no justification for failing to do so.

As a result, the claimant has had no opportunity to respond. Further, she had raised the issue of costs, following the disciplinary tribunal on 16 October 2009, as no disclosure as to the payment of the sums by the defendant had been given. Charles J should not have given the defendant permission to rely on their detailed grounds of resistance.

The defendant, in a witness statement before Charles J, said that it may well be that the application to extend time for the detailed grounds of resistance was not served on the claimant due to a mix of misunderstandings, but the key is that the claimant has suffered no prejudice.

The decision by Charles J is a case management decision. He, therefore, had wide discretion. If the claimant had wanted to, she could have appealed it to the Court of Appeal. She did not. As it is, the key point is, I agree, whether the claimant has suffered any substantial prejudice by receiving the detailed ground of resistance some 7 days after it was due, and some 3 years ago. It is unarguable, in my judgment, that she has suffered any such prejudice.

Secondly, on disclosure, the claimant says that the trial bundle index which she received was largely irrelevant and did not include disclosure concerning the four panel members in her case, and was not in the form required by CPR 31 and PD 31.

The claimant had at the time of her application received no trial bundle. She received trial bundle H on 24 September 2014, and trial bundles A to G on 26 September.

Previously, she had been told to attend the offices of the defendant's solicitor to inspect the documents and/or to pay £320 to them before the defendant solicitors would copy the documents.

The claimant submits that the defendant's conduct has rendered a fair hearing today impossible and that consequently they should be disbarred from any further participation.

Mr Wilkins, on the part of the defendant solicitors, has put in a witness statement explaining efforts made by his firm on disclosure and attempts made to agree the relevant documentation with the claimant. I do not need to go into this matter in considerable detail, as issues on disclosure are relevant only to the adjourned part of the judicial review application, namely the appointments ground.

On matters relating to the costs ground, as the claimant confirmed to me, she has suffered no prejudice. If disclosure which has been given is ineffective, then the remedy for the claimant is to seek a specific discovery order. I do not regard the approach of the defendant as such as to warrant their exclusion from further participation in these proceedings.

Ground Two

The third matter is Ground 2 of the original judicial review. Ground 2 reads:

"It is ultra vires the disciplinary tribunal's rules and in breach of Article 6.1 and a deprivation of property contrary to Article 1 and Protocol 1 for the tribunal to purport to award as "costs" to the BSB:

(a) The BSB's obligation to fund the disciplinary tribunal which was in its power.

(b) The Bar Council's funding of the disciplinary tribunal.

(c) Notional expenses in relation to tribunal members which are known not to have been incurred."

The relevant rule of the disciplinary tribunal rules is rule 31:

"31. Costs.

"(1)A Disciplinary Tribunal shall have power to make such Orders for costs, whether against or in favour of a defendant, as it shall think fit.

"(2)Upon making such an Order a Disciplinary Tribunal shall either itself determine the amount of such costs or appoint a suitably qualified person to do so on its behalf.

"(3)Any costs ordered to be paid by or to a defendant shall be paid to or by the BSB.

"(4)Subject as aforesaid, all costs and expenses incurred by a Disciplinary Tribunal or by the Professional Conduct Committee in connection with or preparatory to the hearing before the Tribunal shall be borne by the BSB."

The facts

Miss Sherman's complaint arose out of a dispute about the the wills and administration of the estate of two kinsfolk of Miss Sherman and her brothers. The matters went to mediation, at which stage Miss Lonsdale was acting directly for Miss Sherman and her family. During mediation proceedings, a firm of solicitors, Henmans, acting for the defendant, produced a letter dated 19 May 2005 alleging that Miss Lonsdale was acting in breach of public access rules.

The focus of the disciplinary tribunal proceedings was on the allegations contained in the Henmans letter. A charge sheet and bundle of documents were served on Miss Lonsdale on 7 December 2007. The preliminary directions were made on 21 January 2008. Miss Lonsdale then made an unsuccessful application to strike out the charges which was heard on half a day on a 21 April 2008, and a further half day on 22 May 2008.

Two further directions hearings took place on 24 July 2008 and 28 October 2008, each listed for half a day. There was then a review of the directions hearing over 3 days: on 20 November 2008, on 2 January, and 4 February 2009.

At each of the direction hearings and at the strike out hearing a tribunal clerk attended. At the review hearings a lay representative was also required to attend. A shorthand writer attended the substantive disciplinary tribunal hearing on 7 August 2009 and when the decision was delivered on 16 October.

At the decision hearing, after the tribunal had announced its findings, the defendant applied for its costs in the sum of £4,719. A copy of the costs schedule was given to the disciplinary tribunal members and Gerard Elias QC, who was representing the claimant. Mr Elias had the opportunity to address the disciplinary tribunal on sentence and costs. He questioned the amount claimed but not the principle.

The tribunal decision was that the sum of £4,379 should be paid as costs. They had deducted from the sum claimed part of the travelling expenses on the part of the lay representatives which had been calculated on an average cost per hearing on a yearly basis, rather than that which had actually been incurred by the lay members themselves.

The Claimant's submissions

The claimant submits that there is no definition of costs in the tribunal regulations. The wording in rule 31(1) has to be contrasted - with the wording of 31(4). It provides for a simple inter partes cost order and no more.

The claimant changed her submissions from those which were contained in her skeleton argument and relied upon those which she made orally today, together with two supplementary arguments that I will come to when summarising her submissions.

The claimant submits that what the defendant has done is to obtain an order based on a schedule of disbursements of the expenses of the disciplinary tribunal itself. The defendant did not incur or pay the expenses of the tribunal. They were the liability of, and paid by, the Council of the Inns of Court (COIC).

The Professional Conduct Committee did not incur costs and expenses and neither did counsel instructed by the defendant, as counsel acts pro bono. The defendant is therefore, not entitled to seek an award of costs in respect of individual sums by way of disbursements for which it has no liability and consequently has not paid.

The only power is to award costs inter partes. The word "costs" is to be given its ordinary meaning, namely that it can include fees and expenses but only on an inter partes basis. There is no wording which enables a defendant to claim the expenses of the tribunal hearing and the proceedings themselves.

Further, rule 31(4) means that the costs and expenses must have been incurred by the disciplinary tribunal or the professional conduct committee in connection with, or as part of, the preparation for the hearing. The opening wording in rule 31.4, "subject as aforesaid", reflects an inter partes award that could have been made as part of the professional conduct committee's cost of the conduct of the proceedings. Otherwise, the rule specifies that the defendant is to bear the professional conduct committee's costs and expenses incurred by the disciplinary tribunal.

In fact, the disciplinary tribunal does not incur costs and expenses because COIC pays those as part of the expense of running the tribunal system. Any reimbursement of COIC by the defendant is a separate matter outside the costs' rule.

If the claimant fails on that, then she has two further arguments:

First, that the sum of £2,255 was paid by the Bar Council which, until March 2009, had the COIC role of reimbursing the disciplinary tribunal, so it was not a cost attributable to the Bar Standards Board that should therefore be deducted from the sum claimed.

Yet further, the claimant submits that if that fails then a further £255 falls to be removed from the sum awarded because that represents travel expenses before April 2009, when it was known that lay members had not incurred them.

The defendant's submissions

Rule 31(1) provides the power for the disciplinary tribunal to order a defendant to pay costs to the Bar Standards Board referable to the sums that the Bar Standards Board was liable to pay in respect of the tribunal's costs (payment to the clerk, shorthand writer and lay representatives).

Rule 31(1) is a broad discretionary power to make such orders of costs as it thinks fit. The rule is not circumscribed so as to prevent the defendant recovering payments which, by arrangements with COIC, it is responsible to pay to the clerk, shorthand writer and lay representatives.

Rule 31(3) does not circumscribe that power. It simply requires that when there is an order for costs to be paid by or to a defendant, it is to be paid to, or by, the Bar Standards Board.

Rule 31(4) provides a default position where a disciplinary tribunal has not otherwise ordered a costs award. The opening words "subject as aforesaid" make it clear that such sums may properly be subject to a costs award under rule 31(1) accordingly.

When rule 31 is read as a whole, rule 31(1) allows for the disciplinary tribunal to make a cost order in the BSB's favour in respect of either the sums incurred by the disciplinary tribunal, or sums incurred by the BSB's complaints committee in connection with, or preparatory to, a hearing before the disciplinary tribunal.

Discussion and conclusions

In Baxendale Walker v The Law Society [2008] 1 WLR 426, the Court of Appeal considered the proper approach to costs where proceedings were brought in the public interest in the exercise of a regulatory function.

Igor Judge P said:

"34. Our analysis must begin with the Solicitor's Disciplinary Tribunal itself. This statutory tribunal is entrusted with wide and important disciplinary responsibilities for the profession, and when deciding any application or complaint made to it, section 47 (2) of the Solicitors Act 1974 undoubtedly vests it with a very wide costs discretion. An order that the Law Society itself should pay the costs of another party to disciplinary proceedings is neither prohibited nor expressly discouraged by s47(2)(i). That said, however, it is self evident that when the Law Society is addressing the question whether to investigate possible professional misconduct, or whether there is sufficient evidence to justify a formal complaint to the Tribunal, the ambit of its responsibility is far greater than it would be for a litigant deciding whether to bring civil proceedings. Disciplinary proceedings supervise the proper discharge by solicitors of their professional obligations, and guard the public interest, as the judgment in Bolton makes clear, by ensuring that high professional standards are maintained, and, when necessary, vindicated.

"Although, as Mr Stewart maintained, it is true that the Law Society is not obliged to bring disciplinary proceedings, if it is to perform these functions and safeguard standards, the Tribunal is dependant on the Law Society to bring properly justified complaints of professional misconduct to its attention.

"Accordingly, the Law Society has an independent obligation of its own to ensure that the Tribunal is enabled to fulfil its statutory responsibilities. The exercise of this regulatory function places the Law Society in a wholly different position to that of a party to ordinary civil litigation. The normal approach to costs decisions in such litigation – dealing with it very broadly, that properly incurred costs should follow the "event" and be paid by the unsuccessful party – would appear to have no direct application to disciplinary proceedings against a solicitor.

"39.In our judgment Jackson J was right to equate the responsibilities of the Institute in Gorlov with the regulatory actions of the licensing authority in Booth. As Bolton demonstrates, identical, or virtually identical considerations apply when the Law Society is advancing the public interest and ensuring that cases of possible professional misconduct are properly investigated and, if appropriate, made the subject of formal complaint before the Tribunal.

"Unless the complaint is improperly brought, or, for example, proceeds as it did in Gorlov, as a "shambles from start to finish", when the Law Society is discharging its responsibilities as a regulator of the profession, an order for costs should not ordinarily be made against it on the basis that costs follow the event. The "event" is simply one factor for consideration. It is not a starting point. There is no assumption that an order for costs in favour of a solicitor who has successfully defeated an allegation of professional misconduct will automatically follow.

"One crucial feature which should inform the Tribunal's costs decision is that the proceedings were brought by the Law Society in exercise of its regulatory responsibility, in the public interest and the maintenance of proper professional standards. For the Law Society to be exposed to the risk of an adverse costs order simply because properly brought proceedings were unsuccessful might have a chilling effect on the exercise of its regulatory obligations, to the public disadvantage. Accordingly, Moses LJ's approach to this issue did not go further than the principles described in this judgment."

The approach of the court to the Law Society exercising its regulatory function is equally applicable to its approach to the Bar Standards Board, which again is acting in the public interest and for the maintenance of proper professional standards on behalf of the Bar.

In the case of Leathley v Bar Standards Board complaint D2007/820, Burnett J, as he then was, sitting with Ms Hobson and Mr Elliott as visitors heard an appeal against a disciplinary finding made by a tribunal against a barrister, Mr Leathley.

The case turned on issues of apparent bias which are not relevant to Ground 2 of the instant case, but within the judgment there is a useful memoire as to how the Bar disciplinary system is organised after the Legal Services Act 2007 (the 2007 Act).

The 2007 Act put on a statutory footing the separation of the regulatory and representational functions of the Bar Council. The regulatory functions are delegated to the Bar Standards Board.

For practical purposes, that is independent of the representative function of the Bar Council. Regulatory functions include disciplinary functions. It is now the Bar Standards Board that decides what steps to take, if any, in response to a complaint against a barrister.

If the conclusion is that there should be a case brought before a disciplinary tribunal, the Bar Standards Board will prefer a charge, prepare the necessary documentation and act as prosecutor before the disciplinary tribunal.

COIC appoints members of the disciplinary tribunal and decides who shall sit as lay and barrister members. The lay members of the disciplinary tribunal are paid a daily fee for sitting. They are also entitled to claim expenses incurred for travel, accommodation and subsistence. The mechanism of the payment to the lay members' fees and expenses has changed.

Prior to October 2010, the Bar Council paid fees and expenses directly to lay members. Barrister members give their time pro bono and receive no expenses.

The claimant submits that the disciplinary tribunal had no lawful basis to make an order against her for the sums incurred by the tribunal.

I reject the claimant's submission for the following reasons:

First, "costs". As a matter of language, the word 'costs' is entirely capable of embracing all the costs to the Bar Standards Board which, as a result of its arrangements with COIC, it is liable to pay. Such an interpretation is consistent with the relevant rule in the White Book in 2009, namely, rule 43.2(1)(a) which makes it clear that costs is broadly defined and includes fees and expenses.

Secondly, when rule 31 is read as a whole, in my judgment it is clear that the rule includes (or can include) running costs of a tribunal. Expenses in sub-section 4 may be a superfluous phrase as, Mr Cross submitted, or alternatively it may there be for the avoidance of doubt. Either way, it does not affect a construction of rule 31 as a whole.

Thirdly, the claimant's interpretation does not explain the words "subject as aforesaid" in rule 31.4. They do not simply qualify the concept of the costs incurred but also qualify the concept of expenses. That supports the defendant's submission that expenses are included in rule 31(1).

Any other construction would mean that expenses incurred was not qualified by the opening words.

Fourthly, that interpretation is supported by practice. That operates to facilitate a regulatory system in the public interest. Nothing in the wording of the rules prohibits an interpretation which I have arrived at and which has been used by the defendant and others, and which has the advantage of fairness; in that a defendant before the disciplinary tribunal can then be ordered to contribute in a supplementary way to their annual subscriptions to the running of a system which they have personally used.

Next, I deal with the history of evolution of the rule because, as a result of the judgment of Davis J, both parties have investigated the same. I do not deal with the entire history in this judgment but with the more recent history.

Before the establishment of COIC in 1987, responsibility for arranging disciplinary tribunals lay with the Senate of the Inns of Court and the Bar. Rule 11 of the Senate Byelaws contained in annexe 1 to the Bar Code of Conduct, which was in force in January 1985, stated:

"(r)Costs All costs and expenses incurred by a Tribunal or by the Professional Conduct Committee in connection with or preparatory to the hearing before the Tribunal shall be borne by the Senate.

"(s)A Tribunal shall have discretion, if there are special reasons for so doing, to allow a barrister who has been charged before it with professional misconduct and such charge or charges have been found not proved to be paid such sum in respect of the costs and expenses incurred by him in connection with or preparatory to the hearing as the Tribunal thinks fit. Any such sum so allowed shall be paid to the barrister by the Senate [17/2266]."

Accordingly, Rule R set out an absolute rule as to how costs and expenses incurred by either the tribunal or what was then called the professional conduct committee were to be borne, namely, by the Senate. Rule S allowed an acquitted defendant to recover his/her own costs if the tribunal thought that there were special reasons.

In 1987, the position with costs was set out in paragraph 26 of schedule A to the code of conduct [costs] and sub headed "costs".

"Costs.

"26.(a) All costs and expenses incurred by a Disciplinary Tribunal or by the Professional Conduct Committee in connection with or preparatory to the hearing before the Tribunal shall be borne by the Bar Council.

(b) A Disciplinary Tribunal shall have discretion, if there are special reasons for so doing, to allow a barrister who has been charged before it with professional misconduct and such charge or charges have been found not proved to be paid such sum in respect of the costs and expenses incurred by him in connection with or preparatory to the hearing as the Tribunal thinks fit. Any such sum so allowed shall be paid to the barrister by the Bar Council."

The matter then changed again in 1989, when rule 26, again subtitled "costs", was brought in:

"26. Costs

"(1) A Disciplinary Tribunal shall have power to make such Orders for costs, whether against or in favour of a defendant, as such it shall think fit.

"(2) Upon making such an Order a Disciplinary Tribunal shall either itself determine the amount of such costs or appoint a suitably qualified person to do so on its behalf.

"3) Any costs ordered to be paid by or to a defendant shall be paid to or by the Bar Council, and as against a defendant who has failed to pay the amount of any costs awarded against him the same shall be recoverable by the Bar Council as a civil debt.

"(4) Subject to aforesaid, all costs and expenses incurred by a Disciplinary Tribunal or by the PCC in connection with or preparatory to the hearing before the Tribunal shall be borne by the Bar Council.

February 1989."

That is in similar form to the current rule 31.

There is nothing within the history which has been put before the court helpfully by Mr Wilkins in his witness statement, and by the claimant in her bundle produced today, which is inconsistent with the interpretation which I have set out. It follows that the substantive part of Ground 2 fails.

The claimant, as I have said, raises two supplementary points. The first is that she should not be liable for the £2,255, because that was paid by the Bar Council. I reject that submission because the defendant has, in effect, stepped into the shoes of the Bar Council, and therefore, the same arguments which I have set out and adjudicated upon above apply.

The position with regard to the further claim that there should be a deduction of £255 (because that has not actually been incurred) fails also or the same reasons. Accordingly, Ground 2 of the application for judicial review fails.

I should record my gratitude to both Mr Cross and Miss Lonsdale for their submissions to me today.

MR CROSS: My Lady, I am most grateful. There are just simply two points picked up from the judgment, by way of --

MRS JUSTICE PATTERSON: Yes, I am sure there will be. I was going from notes, but also it was ex tempore.

MR CROSS: The two I spotted, I think your Ladyship had said earlier on that the application to amend was dated 19 June 2010 and it is 19 June 2012.

MRS JUSTICE PATTERSON: Yes.

MR CROSS: The second one I noted was your Ladyship mentioned that the position in respect of the costs changed in 1987, and it was set out in paragraph 26 of schedule 8. Your Ladyship said the "code of conduct."

MRS JUSTICE PATTERSON: Yes.

MR CROSS: I think technically the position is that it is the second document of Miss Lonsdale's very helpful own authorities bundle.

MRS JUSTICE PATTERSON: It is, yes.

MR CROSS: So that was schedule A of -- this is actually a compendious document -- but as titled on page 943: "The introductions and constitutions of" the various bodies there listed, that this document is not annexed to the code.

MRS JUSTICE PATTERSON: Thank you very much, Mr Cross. I am very happy to accept those amendments. Thank you very much indeed.

MR CROSS: My Lady, so far as consequential matters are concerned I had apprehended from our earlier discussion, and we would be content with this, that the proper course would be for us to make any submissions as to costs in writing. We would be happy to do so, say, within 21 days.

MRS JUSTICE PATTERSON: Yes, 21 days?

MR CROSS: Yes.

MRS JUSTICE PATTERSON: Well, could we just make it 14?

MR CROSS: Yes, we can.

MRS JUSTICE PATTERSON: I know it has not been an expedited hearing, but all the same.

MR CROSS: The only reason why we thought maybe 21, instead of 14, is that whilst Ground 2 of the judicial review has been dismissed, we would submit not all the dismissal review been dismissed.

MRS JUSTICE PATTERSON: No, there is still the remainder, yes.

MR CROSS: The costs would relate at the moment, at any rate, to Ground 2. So there is the obviously not altogether straightforward question of separating out or taking the reasonable view on those costs that have been incurred in relation to ground 2, and indeed the judicial review generally.

MRS JUSTICE PATTERSON: Yes, those costs in relation to the appointments ground, if I give it the generic description. Well, I mean, one option is of course, in terms of the costs of today simply to reserve those to the judge who determines the permission with which he will or she will doubtless do in the light of my judgment.

MR CROSS: Yes.

MRS JUSTICE PATTERSON: Together with whatever decision the Court of Appeal will come to.

MR CROSS: May I just turn my back?

MRS JUSTICE PATTERSON: Yes, of course.

MR CROSS: The concern that is raised by those sitting behind me is that it is likely that in seeking the costs of Ground 2, the Bar Standards Board would seek a payment on account and the proposal to reserve all costs matters until, at the very least, the final determination of the applications in Leathley delays the possibility of our recovering such a payment on account by a very considerable amount of time. That is the matter that I am asked to raise in relation to that.

MRS JUSTICE PATTERSON: Well, I mean this case, I think, was listed for a day. I have not seen any schedule of costs.

MR CROSS: That is right, my Lady, and that is absolutely right.

MRS JUSTICE PATTERSON: Yes, right. I can see your solicitor nodding behind, yes.

MR CROSS: That is partly why I mooted the possibility of 21, rather than 14.

MRS JUSTICE PATTERSON: All right.

MR CROSS: It is not altogether a straightforward exercise that needs to be undertaken, but that is the reason why we would respectfully propose that costs of Ground 2 be dealt with sooner rather than later.

MRS JUSTICE PATTERSON: Yes. Well, I will hear what Miss Lonsdale has to say first. Miss Lonsdale, what do you say about that.

THE CLAIMANT: Well, my Lady, it is a one day hearing.

MRS JUSTICE PATTERSON: Yes.

THE CLAIMANT: There has not been a schedule of costs.

MRS JUSTICE PATTERSON: No.

THE CLAIMANT: In our respectful submission, one has to question whether there should have been.

MRS JUSTICE PATTERSON: Yes, well, there should have been, yes.

THE CLAIMANT: Yes, and whether the consequence of there not being a schedule of costs here before you is that they cannot now claim their costs because, it was intended to be a one day hearing. In my respectful submission, the issue of proportionality is very live in this case.

MRS JUSTICE PATTERSON: I agree with you.

THE CLAIMANT: And, so, although I am naturally disappointed in what you have said, I think the costs in this case, the reason you do not have a schedule, is they are going to be £100,000.

MRS JUSTICE PATTERSON: I am sure they are not going to be anything like that. It is a one day case.

THE CLAIMANT: My Lady, you have not seen the level of correspondence that I have been dealing with. What concerns me is that they are going to be huge, but one really needs to look into why they are so huge because this has been, in effect, a one hour hearing with a judgment.

MRS JUSTICE PATTERSON: Well, it has been a bit more than one hour, Miss Lonsdale.

THE CLAIMANT: No, in relation to the costs issue, my Lady --

MRS JUSTICE PATTERSON: -- right --

THE CLAIMANT: -- which is the point you really determined the matter on.

MRS JUSTICE PATTERSON: Yes.

THE CLAIMANT: I think you have not necessarily said whether I have or not got the disclosure I seek in relation to the other matters.

MRS JUSTICE PATTERSON: I have said that you have not because that is up to you to put in an application.

THE CLAIMANT: My Lady, yes, but I have taken you to the bundles this morning, which I have said are wholly disproportionate to this matter.

MRS JUSTICE PATTERSON: Yes.

THE CLAIMANT: So I am concerned that I should consider making submissions on there should be no order to costs, because no schedule was put in for a one day hearing.

MRS JUSTICE PATTERSON: Yes.

THE CLAIMANT: Also, I think it would be more appropriate to reserve this matter to you, who has been exposed to the bundles point and all other matters, rather than reserved to the judge dealing with the question of permission to appeal because I think you have a flavour of actually how much work has gone to into the costs point, my Lady.

MRS JUSTICE PATTERSON: Yes.

THE CLAIMANT: It really has not been very much, in my submission.

MRS JUSTICE PATTERSON: Well, in relation to the costs of Ground 2 and today, I am content, if you both are, to determine what is the appropriate order. I am extremely mindful of the issue of proportionality, as is everybody I think, frankly, from the tone of the correspondence but I am particularly aware of that.

It is unfortunate that there is not any schedule before the court today which there should have been and it seems to me that the best way forward is then for to you make your submissions, Mr Cross, in writing to me within 14 days. You have 14 days thereafter to reply, Miss Lonsdale.

THE CLAIMANT: I am grateful, my Lady.

MRS JUSTICE PATTERSON: Then I will determine the matter.

MR CROSS: Grateful, my Lady.

MRS JUSTICE PATTERSON: All right, thank you all very much. I am sorry to have kept you here so late.