PSA awarded costs from the General Dental Council and dentist at appeal

The Professional Standards Authority (PSA) successfully appealed the decision of the Health Committee of the General Dental Council (the Committee) to impose conditions on AB’s registration on the ground that it was unduly lenient.

On the basis that its appeal was successful, the PSA argued that it was entitled to its costs against the General Dental Council (GDC) and/or AB.

A brief outline

AB, a registered dental practitioner, was diagnosed with Hepatitis B in 1998. It was alleged by the GDC that AB had dishonestly and/or recklessly failed to disclose this either to the GDC upon applying for registration in 2000, or to any of the health professionals who had treated him between 2003 and 2013.

In addition the GDC alleged that AB had dishonestly and/or recklessly failed to comply with the relevant Department of Health guidance, which not only required him to undergo regular medical supervision for the conditions, but prohibited him from undertaking ‘exposure prone procedures’.

The Committee determined that AB had not been dishonest, but had nevertheless been reckless in not making himself aware of the relevant guidance, and in continuing to undertake exposure prone procedures whilst suffering from Hepatitis B. The Committee found AB’s fitness to practise to be impaired both on the grounds of his health and misconduct, and went on to impose conditions for a period of 18 months.

The main thrust of the PSA’s submissions on appeal was that the Committee’s approach to the issues relating to AB’s dishonesty was unduly lenient, including the finding that his dishonesty did not amount to misconduct, its effect upon his credibility and the appropriateness of the sanction of conditions. The GDC was generally supportive of the PSA’s submissions relating to AB’s dishonesty, but was also critical of the Committee’s decision to impose conditions in relation to its finding of recklessness.

However, at the appeal hearing the GDC re-focused its primary criticism on the Committee’s decision not to suspend AB from practice, despite the reckless nature of his failure to acquaint himself with the relevant guidance or to cease exposure prone procedures.  The appeal succeeded on the question of sanction only, which was considered to be unduly lenient in view of the finding of recklessness.

In seeking an order for costs, the PSA had sought 50% of its costs from the GDC up to 11 March 2016 (the day after the date upon which the GDC had conceded that the PSA’s appeal should succeed), and 50% of its costs from AB up to 11 March 2016, and in view of the absence of any concession from AB, 100% of its costs thereafter.

In the alternative the PSA submitted that if, as a result of the PSA’s failure to succeed on all of its grounds of appeal, the Court was to consider that there should be some reduction in the costs to which the PSA was entitled from AB, this reduction should not exceed 80%.

Whilst the GDC broadly accepted the PSA’s approach to the issue of costs, it also argued that AB should be responsible for all of the PSA’s costs after 11 March 2016, as well as the costs of the GDC from 12 March 2016 onwards, either in whole or at least 80%.

AB argued that there should be no order for costs made against him either in favour of the PSA or the GDC. He submitted that the PSA had failed to succeed on its main grounds in relation to the issue of dishonesty, and that the decision which was found to be in error was that of the GDC. It was submitted that AB was unable to cure that error, and furthermore that it was unrealistic and unfair for the PSA and/or the GDC to expect him to agree to a more onerous sanction than that imposed by the Committee.

Legal framework

The National Health Service Reform and Health Care Professions Act 2002 provides, under Section 29 (8), that the court ‘…may make such order as to costs (or, in Scotland, expenses) as it thinks fit.’

The general rule under CPR 44.2(2)(a) is that ‘the unsuccessful party will be ordered to pay the costs of the successful party.’  However the court does have a general discretion as to costs under CPR 44.2(2)(b), which states ‘the court may make a different order.’

Under CPR 44.2(6), the orders which the court may make include

  1. a proportion of another party’s costs
  2. costs from or until a certain date only
  3. costs relating to particular steps taken in the proceedings
  4. costs relating only to a distinct part of the proceedings

In deciding what order to make the court must have regard to the conduct of the parties and whether a party has succeeded on part of its case, even if that party has not been wholly successful (CPR 44.2(6)). The conduct of the parties includes

  1. conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – pre-action conduct or any relevant pre-action protocol
  2. whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue
  3. the manner in which a party has pursued or defended its case or a particular allegation or issue
  4. whether a claimant who has succeeded in the claim, in whole or in part, has exaggerated its claim (CPR 44.2(4))

Decision

In reaching a decision, Baker J had regard to the fact that an appeal hearing was inevitable and that although the PSA had succeeded in overturning the Committee’s decision on the basis that it was unduly lenient, it did not succeed on any of its primary grounds. He considered that much of the time spent, both in preparation for the appeal hearing and, to an extent, at the hearing itself was expended upon those unsuccessful grounds of appeal.

In addition, although Baker J noted that since 10 March 2016 the GDC had conceded the flawed nature of the Committee’s decision, and had re-focused its primary position at the hearing, he did however recognise that the impugned decision was that of the Committee, and also that the GDC had supported the PSA’s main grounds of appeal, both prior to and at the appeal hearing.

Baker J then considered the position of AB.  He stated that, given the nature of the proceedings an appeal hearing was inevitable, and that it was necessary from the outset of the proceedings for AB to consider his position with care, and to reflect this in his response to them. Baker J considered that although it was appropriate for AB to have contested the PSA’s primary submissions in relation to the issues relating to his dishonesty, but in view of the clearly flawed decision of the Committee in relation to the appropriate sanction, arising out of the reckless nature of his failure to acquaint himself with the relevant guidance or to cease exposure prone procedures, he did not accept that it would have been either unrealistic or unfair to have expected AB to concede this matter. Indeed Baker J went on to say that he considered it was unreasonable of AB not to have done so in this case.

In the circumstances Baker J decided that although the general rule would apply, such that as unsuccessful parties, both the GDC and AB would, in principle, be liable to pay the PSA’s costs of the proceedings. He was of the view that as there were no reasonable prospects of the issues relating to AB’s dishonesty succeeding, he considered that the PSA should only be entitled to part of its costs.  He considered that the appropriate amount of the PSA’s reasonable costs in the proceedings, which it should be entitled to recover, was 60%.

Baker J went on to order that the GDC should pay 30% of the PSA’s costs up to 11 March, and that AB should pay 20% of the PSA’s costs for the whole of the proceedings.

In relation to the GDC’s application for costs against AB, Baker J ordered that AB pay 33.3% of the GDC’s reasonable costs from 12 March 2016.  This was on the basis that, as previously stated, Baker J had considered that it was unreasonable for AB not to have conceded that the Committee’s decision relating to the issue of sanction arising from its finding of recklessness was unduly lenient.

Conclusion

It is clear from this case that on considering the question of costs the Court will have in mind the reasonableness of a Registrant in contesting points of appeal, and further that even if a Regulator concedes at an early stage that the PSA’s appeal is correct, its liability in relation to costs will also relate to the degree to which its basis for doing so was reasonable.

Furthermore whilst a Registrant will be understandably reluctant to concede that a good outcome was unduly lenient and should be set aside, this case demonstrates that a Registrant should always have in mind the cost risk which he or she faces if the PSA’s appeal succeeds. In doing so the Registrant must have in mind the further expense which might be incurred in obtaining representation in respect of the hearing of any aspects of the case remitted back to the Committee for consideration.

These factors illustrate the valuable role which independent and objective advice plays for any Registrant facing a PSA appeal.

Relevant case: Professional Standards Authority for Health and Social Care v the General Dental Council and AB [2016] EWHC 2154 (Admin)


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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