Calver: Chilling effect
The High Court has refused to order costs in favour of a barrister who successfully reduced the suspension imposed on him for recklessly misleading the Court of Appeal.
Mr Justice Calver said that to make it liable for costs in such circumstances could have a “chilling effect” on the exercise of the Bar Standards Board’s (BSB) regulatory obligations.
In halving the 12-month suspension imposed on Mr Owusu-Yianoma, the court last month held that the Bar disciplinary tribunal failed to take proper account of the mitigating factors in his favour. He then sought his costs of the appeal.
Last year, the Supreme Court upheld the principle that costs should only be awarded against the Solicitors Regulation Authority (SRA) in unsuccessful prosecutions where there was good reason to do so. The mere fact that a prosecution did not succeed was not sufficient.
Calver J accepted that the position of the BSB was analogous to that of the SRA and that any costs order made against it would have to be borne by the profession through practising fees.
In deciding on the appropriate costs order, he said the exercise of the BSB’s regulatory function “places it in a different position to that of a party to ordinary civil litigation”.
He continued: “A crucial feature which informs the exercise of this court’s discretion as to costs is that these proceedings were reasonably brought by the BSB in exercise of its regulatory responsibility, in the public interest and for the maintenance of proper professional standards.
“The proceedings were brought and the appeal was resisted in a measured and justifiable way by Miss Kane on behalf of the BSB, in respect of admittedly serious misconduct on the part of the claimant.”
Calver J noted that Mr Owusu-Yianoma only admitted the charges against him the day before the tribunal hearing and that the six-month suspension corresponded to the sanction which the BSB itself had proposed to the tribunal.
“For the BSB to be exposed to the risk of an adverse costs order simply because this court made a limited variation to the sanction imposed by the tribunal, in proceedings which were properly brought by the BSB, might very well have a chilling effect on the exercise of the BSB’s regulatory obligations, to the public disadvantage.
“The appeal was not wholly successful in any event. This court refused to substitute a sanction lower than suspension, contrary to the claimant’s submission on appeal. To that extent therefore, the appeal did not succeed.”
He concluded that the “fair order” was for each party to bear their own costs of the appeal.
