Soni v General Medical Council  EWHC 1705 (Admin)
This is a decision that concerns the consequential orders that were sought by the parties in a case where the Appellant was successful in challenging the findings of the Respondent regulator's Fitness to Practise Panel. The consequential orders sought by the Appellant were (1) an order compelling the Respondent to publicise the decision in the appeal, to remove all records of the initial investigation and Panel hearing, and to update all persons and bodies whom they had previously informed of the investigation or its outcome; and (2) in respect of costs, the Appellant wanted this decided on an indemnity basis and to include £125,000 for loss of income. In reply the Respondent highlighted (1) that the court had no jurisdiction to make the type of orders that the Appellant was seeking; and (2) that costs should be assessed on the standard basis and that a claim for loss of earnings cannot form part of an order for costs.
Holroyde J found that the situation was not as clear cut as the Respondents had argued and that section 40(7) of the Medical Act 1983 did not preclude the court from giving ancillary directions. In any event he felt that it was neither necessary nor appropriate to reach any decision on the point because even if the court had such powers he stated he would not have made such orders as those sought by the Appellant. This was because in his view the mischief complained about had been remedied. Holroyde J also concluded that the Respondent had not acted in bad faith.
In respect of the costs, he set out the trite law and principles that govern the area, and concluded that (1) the sum claimed by the Appellant was "wholly disproportionate and unreasonable" and that "of course" loss of earnings could not form part of an order for costs in proceedings such as these. As noted above, in light of the finding that the Respondent had not acted in bad faith or unreasonably, costs would not be awarded on an indemnity basis to the successful party in this case. But due to the lack of particularisation by the Appellant in respect of the costs he ordered that there be a detailed assessment on the standard basis.
The Appellant in this case had succeeded in his appeal against the findings and sanction imposed by the Respondent's Fitness to Practise Panel. At the end of that appeal hearing, Holroyd J directed that there be written submissions by the parties as to any consequential orders. The judgment that followed dealt with the various consequential orders sought by the parties.
The Appellant, who was a litigant in person, set out a number of grievances he wanted addressed in his written submissions. In particular as set out in para. 2 he complained:
"… that the Respondent had failed to take appropriately prompt action to remove from its website any material or links relating to the disciplinary proceedings or the finding and sanction against which he had successfully appealed. He submitted that the court has very wide discretionary powers under its inherent jurisdiction, and invited the court to exercise those powers by making orders requiring the Respondent to publicise the decision in this appeal, to remove any record of the initial investigation and Panel hearing, and to update all persons and bodies whom they had previously informed of that investigation or its outcome."
In respect of costs, the Appellant invited the court to make a summary assessment. He also argued that he should have all his costs on an indemnity basis.
The Respondent on the other hand argued, (with reference to section 40 (7) of the Medical Act 1983, that the court "… could only act within those powers [s.40(7)] and so had no jurisdiction to make such orders as the Appellant sought" (para.3). However the Respondent did accept that "… there had been unfortunate delay (sic) , for which it expressed regret, but stated that by 25th March 2015 all necessary action had been taken to remove from the Respondent's website any reference to the initial adverse hearing" (para.3).
In relation to costs, the Respondent argued that the Appellant should have only a proportion of his costs because he had lost on a number of issues, and that costs should be assessed on the standard basis.
Holroyde J expressed his sympathy and understanding for the Appellant's anger that all the necessary steps to remove from the Respondent's website the previous and subsequently quashed findings of the Fitness to Practise Panel, had not been taken promptly. Nevertheless having regard to all the evidence in the case he concluded that the Appellant was:
"… in error in thinking that the Respondent should have taken those steps even before my judgment was handed down. He was in my view also in error in in alleging that the Respondent had not acted in good faith. I find no basis for thinking that the Respondent was motivated by any improper consideration. It seems to me much more likely that the Respondent was simply dilatory (and culpably so) in failing to act more quickly" (para.4).
In particular, Holroyde J accepted the Respondent's contention that all the necessary action had by the time of the written submission taken place. He concluded "I accept that the orders sought by the Appellant would serve no purpose" (para.4)".
In relation to the arguments put forward by both parties as to the court's powers in respect of consequential orders such as those sought by the Appellant, the learned judge thought that arguably such powers existed contrary to the Respondent's assertions. He noted at para. 6:
"I agree with the Respondent's submission that the court's powers as to the disposal of an appeal such as this are set out in section 40(7) of the 1983 Act. I also agree that the various decided cases to which the Appellant's submissions referred are merely examples of the way on which the court has exercised those powers in a number of cases in the past. It does not necessarily follow that section 40(7) precludes the court powers in a number of cases in the past. However, I do not think it necessary or appropriate for me to reach any ancillary directions. However, I do not think it necessary or appropriate for me to reach any concluded decisions on that point. Even if the court has power to make orders such as those sought by the Appellant, I would not do so in the circumstances of this case. The failing has been reminded, and I am not persuaded that the Respondent had acted in bad faith".
In respect of the costs issue, Holroyde J set out very carefully the law and procedure in the area, with particular reference to CPR 44.2. As noted above the Appellant was seeking costs on an indemnity basis, and so the aforementioned grievances were relevant to the costs. Holroyde J stated at para. 13:
"It is understandable that the Appellant feels a high level of anger and frustration, but I cannot accept his submissions. My decision was that there was no case to answer on the allegations against the Appellant. It does not necessarily follow that the Respondent acted irresponsibly or in bad faith in seeking to uphold the decision of the Panel. It can certainly be said that the Respondent made an incorrect assessment of the merits of the case; but that does not in itself take the case out of the norm, and I do not regard it as a reason for awarding costs on the indemnity basis".
Having found that the costs should be decided on the standard basis, the learned judge then moved on to the issue of how the costs were to be assessed, namely whether there should be a summary assessment or a detailed assessment. In arriving at his decision on this issue, the judge was somewhat taken aback by the costs claimed by the Appellant in respect of their nature (claim for loss of earnings), the size of the sum claimed, and the paucity of the details supporting the claim. Inter alia, the judge noted that (i)"The Respondent in response submits that a claim for loss of earnings cannot form part of an order for costs. That is of course correct" (para.16); (ii) "The total sum claimed by the Appellant immediately strikes me as wholly disproportionate and unreasonable" (para.17); and that (iii) "I am very reluctant to involve the parties in further costs by ordering a detailed assessment. That reluctance is increased by the fact that the Appellant has submitted his claim on an out of date form, with manifestly inadequate particulars. However, the overriding objective is to deal with the case and at proportionate cost. I cannot meet the objective either by trying to make a summary assessment on an insufficient basis, or by refusing to award any costs. I conclude that in those circumstances I must direct detailed assessment."