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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> David, R (On the Application Of) v Healthcare Professionals Council [2015] EWHC 4082 (Admin) (19 November 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/4082.html Cite as: [2015] EWHC 4082 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		19th November 2015

1. MRS JUSTICE ANDREWS: This is an appeal, pursuant to Article 38 of the Health and Social Work Professions Order 2001, against the sanction imposed upon the Appellant, Miss David, by a panel of the Respondent's Conduct and Competence Committee ("the CCC"), following a disciplinary hearing on 24th April 2015. The CCC imposed a sanction of strike off, coupled with an 18-month interim suspension order to cover any period of appeal. Although the CCC found that there had been deliberate and serious acts of dishonesty and that she showed limited insight into her actions, Miss David contends that the sanction was unduly harsh and disproportionate.
2. Miss David has a right of appeal to this court and the appeal proceeds by way of re-hearing, but this court cannot interfere with the decision of the CCC unless it is satisfied, to the civil standard, that the decision was wrong or that it was unjust because of a serious procedural or other irregularity (CPR 52.11(3)). In this case Mr Godfrey, who appears for Miss David on this appeal, as he did before the CCC, contends that the decision was wrong.
3. Miss David is a qualified social worker and has worked full-time for Local Authorities as a locum social worker since 2007. As such, she was and is registered with the Respondent ("the HCPC"). At the time of the events giving rise to the disciplinary proceedings against her, she was also registered with Ofsted as a childminder.
4. The complaint against Miss David arose from her conduct in running a childminding business from home for some three years whilst she was also working full-time as a social worker, and in telling lies to Ofsted inspectors when they made an unannounced inspection visit on 19th August 2010. However, the disciplinary process only concerns her registration with the HCPC and her ability to work as a social worker. She voluntarily terminated her registration as a childminder immediately following the Ofsted inspection.
5. The allegations made against Miss David were as follows:

i. "Whilst registered as a social worker

ii. ( 1) You ran a full-time childminding business from home between June 2007 and August 2010 whilst also employed as a social worker on a locum basis.

iii. (2) You breached the conditions of the childminding registration with Ofsted in that:

(b) on unspecified dates between June 2007 and 19th August 2010 including the 19th August 2010 you left the minded children alone in the care of one or two adults who had not undergone CRB checks with Ofsted.

(c) on unspecified dates between June 2007 and 19th August 2010 including 19th August 2010, you caused or allowed a number of children in your care to exceed the levels permitted by Ofsted.

(d) you were absent from your childminding business for long periods of time.

i. (3) On 19th August 2010 you misled an Ofsted inspector by stating that:

(a) you had no other employment outside your childminding business.

(b) your registered childminding assistant was on a training course when she had in fact left your employment.

ii. (4) Your actions at paragraphs 1 to 3 were dishonest.

iii. (5) The matters set out in paragraphs 1 to 4 constitute misconduct.

iv. 6) By reason of your misconduct your fitness to practise is impaired."

6. This is the second time that this matter has come before this court by way of statutory appeal. The first occasion followed the initial disciplinary hearing which resulted in a different panel, on 21st March 2014, imposing a caution order on the registration of Miss David for a period of 12 months after making a single finding of dishonesty in relation to the third of the allegations I have quoted above. That panel had found that dishonesty was not proved in respect of the first two allegations.
7. The regulator, the Professional Standards Authority for Health and Social Care, appealed to the High Court under section 29 of the National Health Service Reform and Health Care Professions Act 2002. On 25th November 2014 Popplewell J allowed the appeal. In a carefully reasoned judgment [2014] EWHC 4657 (Admin) he found that the original panel had applied the wrong test for dishonesty and that on the facts as found, it would not be open to any tribunal to find that Miss David did not appreciate that her conduct in respect of the two remaining allegations was dishonest. If the original panel had found dishonesty proved on all three allegations as they were bound to do, they would have approached the question of sanction in a different way. He remitted the matter for reconsideration by a fresh panel of the CCC in the light of those findings. It is the decision of that panel with which this appeal is concerned.
8. Although Miss David initially sought to put fresh evidence before the court on this appeal, the application, which was opposed by the HCPC, was not pursued by Mr Godfrey. Having looked at the evidence de bene esse at Mr Godfrey's invitation I concluded that it would not have taken matters any further.
9. Mr Godfrey submitted that the CCC failed to give sufficient weight to two matters in particular. First, the lengthy period of over four-and-a-half years since the events in question, during which Miss David had pursued the profession that she describes as her "passion" without any cause for complaint against her conduct or about her honesty. Secondly, the degree of remorse and insight which she had shown into her behaviour; in particular, the fact that, linked with the period of four-and-a-half years where she led a blameless existence, there had been no attempt to call into question the way that she had dealt with vulnerable young people. He drew attention to the evidence given by Miss David in cross-examination before the panel that in her current role with the London Borough of Newham, to whom she said she had disclosed the finding and sanction imposed by the original CCC panel, she was working with vulnerable service users, including on child protection and child in need matters.
10. Among those from whom Miss David produced references before the second panel of the CCC were Miss Agnes Kunaka, the practice manager of the intervention team at Newham who had been managing her social working for the past 9 months, and a Mr Simon Boyce who works for a recruitment agency and was the person with direct responsibility for obtaining Miss David's employment as a locum over a period of four years.
11. Each of the references, including the two which I have mentioned, is addressed "To whom it may concern" and is entitled "Character reference for Miss Elizabeth David". They speak highly of Miss David's work and dedication to her profession, and three of them specifically describe her as honest. The fourth speaks in glowing terms of her integrity. However, there is nothing on the face of the references themselves to indicate that the writer is aware that Miss David had previously been found to have acted dishonestly, inter alia by telling direct lies to the Ofsted inspectors, and there is nothing in them to demonstrate that she had shown insight into that behaviour.
12. All of the references were provided very shortly before the fresh disciplinary hearing and therefore at a time when Popplewell J's judgment would have been well-known to all concerned. Therefore, it would have been incumbent upon Miss David to explain to her referees, that she had been found to have been dishonest not only in relation to the incident when the inspectors arrived unexpectedly and what she said to them, but also in relation to her conduct over the previous three years.
13. The chair of the panel understandably asked Miss David, at page 613 of the transcript, whether the referees were aware of the disciplinary proceedings and of the findings of dishonesty and Miss David said she had told everyone. In response to further questioning as to why there was no mention of this in the references, Miss David said that she "told them everything and asked them to go on the website and see everything that is written about me there". That is a reference to the fact that the outcome of the disciplinary process would normally be posted on the HCPC's website. Miss David also explained that she felt that the references adequately covered the point because they expressly spoke of her integrity and honesty.
14. Mr Godfrey criticised the way in which the panel dealt with the references in paragraph 13 of its decision. The panel said that by way of mitigation, it had taken into account Miss David's good professional history prior to the events now being considered, and noted that that had been no subsequent allegations of professional failings. It then said this:

i. "The panel has noted the references provided but takes into account that these references had not been addressed to the panel and do not indicate that the authors are aware of these proceedings or of the findings of dishonesty. Therefore, the panel gives limited weight to the references."

15. Mr Godfrey submitted that this was tantamount to a rejection of Miss David's evidence that she had told her referees about the previous findings of dishonesty and that she needed the references for use in the ongoing disciplinary proceedings against her (which obviously necessitated her telling the referees about the existence of those proceedings). This, he submitted, was unfair to Miss David, because it was not open to the panel to draw such an adverse inference simply from the absence of any mention of the previous dishonesty findings or of the disciplinary proceedings in the references themselves.
16. On behalf of the HCPC, Miss Butler-Cole submitted that this was not a fair reading of what the panel had said. What they had recorded in paragraph 13 about the absence of any reference to the findings of dishonesty, or mention of the disciplinary proceedings in the character references, was factually correct. All that the panel was saying there was that they might have given greater weight to those references, had the references made it clear that they were being given by people who did know of the previous findings of dishonesty and of the ongoing proceedings and then for example, went on to explain why the referee considered that the conduct was an aberration or that Miss David had demonstrated by her behaviour since that time that she had learnt her lesson and would never repeat it. Miss Butler-Cole pointed out that there is no express finding by the panel that they rejected Miss David's evidence.
17. In my judgment, the panel have not made a finding that Miss David was lying to them when she answered the questions put to her by the chair, let alone using that as a material factor to weigh in the balance against her. The panel would have been entitled to be somewhat sceptical about the evidence, given that one might reasonably have expected the references to have made a mention of the previous finding of dishonesty had the authors known about it. However, the panel were not making any findings adverse to Miss David. On the contrary, they were explaining why the references were not as useful as they might have been to her. At the very most, the panel were saying that they could not be satisfied that the referees were saying what they did with knowledge of the full picture, and therefore the references were of limited assistance. In my judgment, that was a stance that they were plainly entitled to take. It is a long way from a finding that Miss David was not being open and honest with the panel.
18. Allied to this criticism is a point made by Mr Godfrey of the conduct of counsel then instructed for the HCPC, Miss Jones, who in submissions invited the panel to put weight on Miss David's body language:

i. "I do not know whether you were aware but did you see the registrant shaking her head when she was giving the arguments, whilst she was telling that they were aware she was in fact, her body language, shaking her head. So that is something that is relevant for your consideration when you consider what weight to attach to those documents."

19. In response to those observations at the time Mr Godfrey rightly warned the panel that it was dangerous to place any weight on the witness' body language. The legal assessor echoed that. He said that his understanding was that there is guidance given to judicial office holders about the danger of trying to interpret body language and the danger of subjectivity that there might be in there. He said that if it were to become a relevant point in the panel's consideration, as a matter of fairness the point ought to be put directly to Miss David. At that juncture, Miss Jones (plainly conscious that she had overstepped the mark) immediately cut in and expressly withdrew the comment.
20. Whilst I agree with Mr Godfrey that Miss Jones's remarks were infelicitous I regret that I cannot accept his submission that, notwithstanding the warnings by both him and the legal assessor and Miss Jones's express withdrawal of the remark, the panel was obviously adversely influenced by that point when deciding how to treat the character references and how much weight to place on them. This court has to assume that a professional disciplinary panel will act in accordance with the guidance given to it by its legal assessor. There is nothing in the panel's decision to indicate that it was in any way influenced in its assessment of the references by the manner in which Miss David had behaved when answering questions about them.
21. Mr Godfrey was also critical of paragraph 16 of the decision. There the panel considered the fact that following the original disciplinary hearing Miss David did not inform her then employer, Haringey Borough Council, that her fitness to practise had been found to have been found to be impaired on the basis of dishonesty. That was at a point at which it appears the sanction had not yet been imposed, because the hearing had been adjourned. Miss David had told Haringey that the proceedings were ongoing and she expected the hearing to be reconvened in a week or so for the panel to consider the question of sanction. The current panel of the CCC noted her explanation that she had expected the outcome of the proceedings to be posted on the HCPC website within a week, and they accepted that this could have led her to think her employer would be able to see the outcome on the website. The panel nevertheless decided that she should have told Haringey that a finding had been made that her fitness to practise was impaired, and that this indicated a lack of transparency on her part. The panel also took into account the fact that when Haringey was told, it terminated her employment.
22. Mr Godfrey submitted that this was an unduly harsh characterisation of an understandable human error. If the panel had accepted that Miss David believed that Haringey would see the outcome on the website, then she was not trying to keep the information from them. He submitted also that it could be inferred from her evidence that Miss David assumed that the sanction was likely to be more significant for the employer than the findings on which the sanction was based, and that too much weight was placed by the panel on an understandable failure in context to volunteer that a finding of fitness of practice of being impaired had been made without being able to answer the obvious next question, namely, "what sanction has been imposed upon you in response to the finding of unfitness?"
23. Miss Butler-Cole submitted that the panel was entitled to take the view that had been a lack of transparency, albeit that they plainly accepted Miss David's excuse for it, and to take it into account in the overall balancing exercise. Since the panel obviously also took into account her blameless conduct over the next four and a half years, there was no reason to suppose that it was a matter that tipped the balance in favour of striking off rather than suspension (those being the only realistic dispositions available in a case involving not one but three findings of dishonesty, two of which related to conduct committed over a period of some three years).
24. In my judgment, if one reads the panel decision in the round, the Haringey point does not assume any undue prominence, certainly not to the level that undermines the correctness of the decision on sanction. It seems quite plain from reading that decision that the factors which really drove the panel towards their conclusion that only striking off is appropriate are those that were referred to in paragraph 14 and 15, namely that they were not entirely convinced that Miss David had true remorse about the incident itself, or that she properly understood the repercussions of her behaviour for the very young children, babies and parents involved.
25. At paragraph 14 the panel said this:

i. "The panel has considered the question of remorse but has concluded that the registrant's greater concern in this respect is about the proceedings and the impact of the proceedings on her. The panel is not entirely convinced that the registrant has true remorse about the incident itself, or that the registrant properly understands the repercussions of her behaviour for the very young children, babies and parents involved. The registrant does not seem to understand the risks involved in allowing people who may not be suitable carers to take responsibility for the care of extremely vulnerable children and babies without proper supervision by an authorised person...

ii. 15. The panel takes into account the serious nature of the wrongdoing which included the registrant deliberately concealing information and dishonestly misleading an Ofsted inspector whose role was to protect children."

26. In paragraph 18 the panel said that it took into account that dishonesty on the part of a social worker goes to the heart of the social worker role and undermines the trust which members of the public are entitled to place in social workers.
27. Although Mr Godfrey valiantly strove to persuade the court that the panel had not fairly dealt with the question of insight, on looking at the way in which Miss David dealt with the matter in her evidence, it is apparent to this court that whilst she did address the way in which people would view her when they found out that she had been found to be dishonest, nowhere at all does she address the question of the impact that her behaviour might have in terms of risk to the people in her care, in particular to children and babies. That was the matter which the panel found of most concern in this case.
28. Bearing in mind the fact that even a single finding of dishonesty is likely to result in striking off by way of sanction, and that here one is dealing with three such findings, the panel would have had to have very cogent and clear evidence from Miss David that she had learnt her lesson and really had true insight into the impact of her behaviour before it could have properly decided that a lesser sanction would be appropriate and proportionate in this case.
29. In dealing with the sanctions the panel rightly, in my judgment, did not dwell upon lesser sanctions than suspension and striking off. When it came to considering the sanction of a suspension order it said that it took into account that young children were placed at risk as a result of the registrant's conduct, and that she has shown no real understanding of the consequences of her action on those children or their parent who were depending upon her. In my judgment, that is completely fair comment. They went on to find that a suspension order would not adequately reflect the gravity of the failures and the dishonesty.
30. They took into account (in paragraph 22) the very positive factors that were prayed in aid by Mr Godfrey, namely that the underlying findings occurred nearly five years ago, and that during these lengthy proceedings Miss David had been under considerable strain. They said that was a factor which carries significant weight, but the panel had to determine an appropriate and proportionate sanction taking into account all of the features of the case and not just the impact on the registrant.
31. In paragraph 23 the panel concluded that in all the circumstances the appropriate and proportionate sanction is one of striking off order, taking into account the fact that the actions were deliberate and serious acts of dishonesty, that the registrant had abused the trust that parents were entitled to place in her as a registered childminder and that she had only shown limited insight. They observed that for a social worker to act dishonestly is incompatible with the basic requirements of integrity and trust which are fundamental to the role. Anything less than a striking off order would be insufficient to uphold proper standards of conduct and maintain public confidence in the profession and in the HCPC as a regulator.
32. Mr Godfrey submitted that there had been insufficient weight, or indeed no weight at all, attached to the fact that immediately after the Ofsted inspection Miss David had tendered her resignation to Ofsted as a childminder. He said that was something that demonstrated by her behaviour that she had insight into the effect of what she had done on those within her care. I am not convinced that one can draw that inference from that behaviour, but in any event it is hardly a major point to weigh in the balance when taken against the overall picture.
33. Finally, Mr Godfrey criticised Miss Jones's approach to the sanctions at the hearing when, at the end of the legal assessor's summation of the various sanctions that were available to the panel Miss Jones drew the attention of the panel to a part of the indicative sanctions policy that the legal assessor had not mentioned. She read out the passage in the indicative sanctions that showed that striking off is a sanction of last resort, and she drew their attention to the fact that the indicative sanctions showed that if there is an abuse of trust or dishonesty and there is a lack of insight, those may be factors that point towards striking off being the only available sanction.
34. In my judgment, Miss Jones was right to intervene and to draw the panel's attention to a passage in the indicative sanctions policy that had not been referred to by the legal assessor. She did so in a neutral fashion, as far as I can see, and simply read out what the policy actually said. That particular passage, if anything, is favourable to a registrant because it shows that striking off is a sanction of last resort when no other sanction can be seen to be appropriate or proportionate, and it draws the panel's attention to the sorts of factors that are relevant. It certainly was not an indication that Miss Jones was encouraging the panel to strike off this particular registrant.
35. It is also noteworthy that no protest was made about Miss Jones's intervention by Mr Godfrey at the time which one would have expected council to do if he had felt that she had unfairly intervened or had put the matter before the panel in a way which appeared to be trespassing beyond the role of the prosecutor at the sanctions stage a disciplinary process which should be to maintain a position of neutrality, and provide the panel with appropriate information.
36. I am not prepared to come to the conclusion that this decision was tainted in any way by anything that Miss Jones said in drawing the panel's attention to the indicative sanctions policy and the relevant parts of it.
37. For all of those reasons, I am regrettably not satisfied that there is anything in the grounds of appeal which leads me to the conclusion that the determination by this fresh panel of the CCC was wrong. It is not enough to show that another panel might have weighed the various factors in the balance in a different way. The panel did not misdirect itself as a matter of law. It took into account all the factors that it was entitled to take into account and (unlike this court) it had the considerable benefit of seeing and hearing the evidence. It was entitled to form the conclusion that the insight displayed by Miss David into her behaviour was limited and it was entitled to reach the decision that the only proportionate and appropriate sanction which it could impose was a striking off order.
38. For all those reasons the appeal is dismissed.
39. MS BUTLER-COLE: I am grateful for the judgment. There is an application for costs. I hope you may have had a copy of the schedule.
40. MRS JUSTICE ANDREWS: I think the bottom line is £16,000 odd.
41. MS BUTLER-COLE: Yes. I am happy to deal with any specific points about it. But the only broad point in relation to the quantum is just to note that because Miss David did not have a solicitor these costs are perhaps higher than they would have otherwise been. It was the HCPC that prepared the bundle so just ... but beyond that I am happy to hear what my learned friend has to say and respond to that if I can be of assistance.
42. MRS JUSTICE ANDREWS: Yes, Mr Godfrey, what do you have to say about the schedule?
43. MR GODFREY: My Lady, I am instructed to oppose the principle of costs. I do not have a lot to say, but those are my instructions and I will explain to Miss David why I do not have a lot to say about them, those are my instructions. So far as the costs schedule itself I must say that with respect, the time spent in almost all of the categories seems to me to be relatively excessive. I mean 8.5 letters out and emails, that is 10 minutes, attendance on the professional party. Six hours letters out and emails out attendance on the opponents. I think I am right in saying that pretty much all of the discussions with Miss David and myself as her counsel appear in the bundle and they are brief if I can put it that way.
44. There is a grade D involved but only on letters out and I must say turning over the page attendance on others I mean I do not see another, in this, or the need to be in contact with another in this case.
45. MRS JUSTICE ANDREWS: Unless it is somebody coming to the court to issue something.
46. MR GODFREY: Quite so my Lady, I await to hear about that but it does seem to me to be still on the heavy side even for attendance at court. Counsel's fee. I cannot say that it is in the wrong ball park.
47. MRS JUSTICE ANDREWS: No.
48. MR GODFREY: Although I am on a Direct Access basis which involves different consideration it is not in a different ball park to the fees that Miss David has paid in respect of my services. So really it is about those questions of just the sheer number of hours that have been claimed.
49. MRS JUSTICE ANDREWS: And the involvement of an A grader.
50. MR GODFREY: Yes, my Lady.
51. MRS JUSTICE ANDREWS: To the extent that the A grader is involved. Why is the A grader writing all the letters out? I will ask Miss Butler-Cole about that in a minute.
52. MR GODFREY: I was going to say. There is D who does almost nothing and grade C is still only doing I would say, somewhere between two thirds and three quarters which is a heavy involvement from a grade A where the position of HCPC, as I understand it, was that this appeal was hopeless from the outset. So there is a little bit of having their cake and eat it too, if I can put it that way. If it was so hopeless from the outset why is a grade A needed, along with advice from experienced counsel (2005 call) for which (advice conference, documents, I do not know what the split is), but there is £1600 for that. So it seems that is there is quite an overlay between a very senior solicitor, counsel and not certain enough shifting if I can put it that way of the work down the grade structure.
53. MRS JUSTICE ANDREWS: In terms of the principle, the normal rule of course, as you will have explained to your client is that costs follow the event. There is, however, in statutory appeals a slightly different nuance to them because the position below is drop hands on costs. The relevant regulations leave the matter entirely in the discretion of the court, of course, and one of the factors that the court usually takes into account is the seriousness of the ... well two things that the court normally takes into account. One is the seriousness of the outcome for the person concerned, which is obviously a relevant factor in deciding who should bear the costs. If you have got a right of appeal and you have got a right to come to the court and if you are likely to lose your livelihood as a result of the proceedings that is a factor that may be relevant. But secondly (and I have come across this much more in this context), there are the financial implications of a costs order, and how much the person concerned can afford to pay. But the difficulty in this case, Mr Godfrey is I have absolutely no evidence as to what your client's financial circumstances are.
54. MR GODFREY: Yes, my Lady.
55. MRS JUSTICE ANDREWS: I would have expected that if a challenge to the principle was going to be made that that might have been foreshadowed and some evidence put before the court.
56. MR GODFREY: Yes. Well, I apologise my Lady. What I can tell you is that my client has not paid my fees directly. They have been paid by family members.
57. MRS JUSTICE ANDREWS: Yes.
58. MR GODFREY: And other sources such as that.
59. MRS JUSTICE ANDREWS: She is suspended at the moment - what is she actually doing?
60. MR GODFREY: Sorry.
61. MRS JUSTICE ANDREWS: I will let you take some instructions from her.
62. MR GODFREY: I do know that. I am sorry to interrupt, that was not my intention. She is unemployed at the moment.
63. MRS JUSTICE ANDREWS: Yes.
64. MR GODFREY: She was not suspended, she was terminated with Newham so their position, well, depending on what happened today well may be they talk to her, but from an employment perspective it is finality.
65. MRS JUSTICE ANDREWS: Yes. All right. Well I will see what Miss Butler-Cole has to say. Now Miss Butler-Cole why have we got a grade A fee earner involved in a case like this?
66. MS BUTLER-COLE: A grade A fee earner involved. Miss Peak who sits behind me is the grade C fee earner, she is one year post training contract and so what she does, some of it she does on her own but much of it is needs to be approved or at least reviewed by the more senior partner on behalf of the firm for the HCPC.
67. MRS JUSTICE ANDREWS: Why should the other side pay for that? If somebody is at the lower stages in terms of their training - no disrespect to Miss Peak, but there is a world of difference between charging your own client for that and charging the other side.
68. MS BUTLER-COLE: The point I was really making is that one would have had a grade B fee earner doing all this work.
69. MRS JUSTICE ANDREWS: It is a C plus A.
70. MS BUTLER-COLE: Exactly. The attendances on others that was raised, just to clarify. That is indeed attendances on the court and counsel under that heading. That is what that covers.
71. MRS JUSTICE ANDREWS: Right.
72. MS BUTLER-COLE: The other points in terms of documents I think probably are self explanatory in terms of what they relate to and I have already made the point there was slightly more than is usual in a cost schedule in one of these appeals because of additional work that the HCPC agreed to do because of Miss David's lack of solicitors. Beyond that my Lady obviously the decision is in my Lady's hands in term of summary assessment as to what would be an appropriate figure. In relation to the question of principle, it is obviously not uncommon for the HCPC to be in this position and be in the position of seeking a costs order against a registrant who, by virtue of the proceedings almost always is going to have some difficulty in paying for those costs. That is not, in my submission, directly relevant to the question of principle. But in any event the HCPC has its strategy that it adopts in terms of the voracity with which it goes after people for costs. It has an understanding of the situation.
73. MRS JUSTICE ANDREWS: I am aware of that. That is true of all professional bodies in my experience. I have been known when faced with schedules of financial schedules to make very similar order to the one that you do in a legal aid context, which is that the order is not to be enforced without the leave of the court. On other occasions I have been known to leave to it the good offices of the successful party, but you would say anyway in terms of CPR 44 there is nothing in terms of your behaviour that suggests that you should be deprived of your costs or there should be any departure from the normal principle that costs should follow the event. It is not usually a good enough reason to say that the other party cannot pay the costs.
74. MS BUTLER-COLE: No.
75. MRS JUSTICE ANDREWS: The unusual feature, if I may say so, is the fact that this is an appeal as of right in a disciplinary process where each side bears their own costs at the earlier stage.
76. MS BUTLER-COLE: The only other point just to raise, whether it is of assistance or not, is just to make the point that the HCPC did in this case (as it does generally) make an offer as recently as 6 October that it would not seek any of its costs in the event that Miss David, having reflected on the arguments that had been put on both sides, had a change of heart.
77. MRS JUSTICE ANDREWS: Decided not to pursue the appeal.
78. MS BUTLER-COLE: They have tried to act as fairly as possible and give her that warning of what the cost implications might be.
79. MRS JUSTICE ANDREWS: That does put a different complexion on it. Yes.
80. Mr Godfrey, is there anything you want to say about that because if the position is that the respondent has basically said we will give up on our costs if you realise that this appeal is hopeless, and your client then charged on ahead regardless, she did it with her eyes wide open, did she not?
81. MR GODFREY: Well, I think the only slight complexion that I would want to put on it is of course there is no -- in this type of appeal there is no effective response to the grounds of appeal until the skeleton argument of the respondent came in. That came in significantly after that offer and in fact the offer was predicated on the HCPC's need to instruct counsel. But I think it is fair to say that Miss David wanted to avail herself of the statutory right and that the proceedings below obviously have a significant impact. So I do say that there is a sort of interests of justice point here and it cannot be said that she soldiered on in the full knowledge of what HCPC would say, because there had not been the skeleton argument at the point when she was asked to make that particular reflection.
82. MRS JUSTICE ANDREWS: Yes. Right. Thank you.
83. I have to consider the question of the costs. The starting point always is that costs follow the event, and that is true in a statutory appeal in the same way as it is true in any other litigation before the courts. However, one of the factors that one always takes into account in a statutory appeal is the fact that it is an appeal as of right in proceedings which by their very nature were bound to have a serious impact upon the registrant, in this case the appellant, and in the proceedings below the parties bear their own costs. The court therefore has perhaps a wider discretion in terms of departing from the normal rule than might otherwise be the case and in exercising the discretion one has to take into account the behaviour of both parties and the nature of the application before the court.
84. In this particular case the appeal was not one which really stood much chance of succeeding, although it was not so hopeless that it could not be argued. Mr Godfrey did his level best with the criticisms of the decision of the panel that he put before the court on his client's behalf. On the other hand, the respondent very properly made an offer that it would not seek its costs if, on reflection, Miss David appreciated that she was not going to get anywhere with this appeal and withdrew it before they incurred the major costs of instructing counsel.
85. Mr Godfrey says in response to that: well, she was not in a position at that stage to know what the HCPC's position was because, as counsel had not yet been instructed, there was no skeleton argument. The skeleton argument from counsel would have clarified what the points were that were being taken in opposition to the appeal. In my judgment, that has limited force because she was instructing counsel throughout and had the benefit of legal advice. Of course I do not know what the advice was, but I must assume that it was realistic. That being so, the offer was one that she should have taken seriously.
86. It seems to me that in principle there is no reason, given that background, why I should not follow the normal rule that costs should follow the event. I do appreciate, however, that these proceedings must inevitability have had a serious impact upon the appellant's finances. I have no information before me of a clear nature as to what her current financial status is, but I can take an educated guess about it and counsel has told me, in fact, that his direct access fees are being paid by family and well-wishers. She is not working at the moment. There is an interim suspension order in force. That is bound to cause her a degree of financial difficulty.
87. Miss Butler-Cole says that the HCPC always takes a particular view in relation to enforcement, but that the possibility of not being able to recover all the costs is not a relevant consideration when the court comes to exercise its discretion in terms of how much to award. It seems to me that in principle that must be right. However, the fact that an adverse costs order is likely to have a serious impact upon this lady and her finances is something which will make me look at the summary assessment with a particularly keen eye. I have done so. I bear in mind that I am told by Miss Butler-Cole that, in a helpful gesture, the HCPC's solicitors took upon themselves some of the tasks that an opposing solicitor acting for the appellant would otherwise have carried out. They did that because she was instructing counsel directly and there were no opposing solicitors. That inevitability led to a higher figure on the schedule than one might otherwise see. The involvement of a grade A partner was explained on the basis that the grade C fee earner was herself only qualified a year and needed an element of supervision. However, it is not usual in a case of this nature for the losing party to have to pay for the input into somebody's education and training however desirable it may be that a partner casts an eye over things that are being done by those for whose training he or she is responsible.
88. I have to take a broad brush approach to this schedule and I also take into account the fact that the solicitors were doing the work of both sides in preparing the bundles, which they prepared to a very high professional standard, which the court has found extremely helpful.
89. The grand total that has been put before me is one of £16,247.68. I do consider that figure to be rather on the high side. I propose to summarily assess the costs at a figure of £10,000 bearing in mind all the various competing factors to which I have referred. So the order will be that the appellant pays the respondent's costs summarily assessed in the sum of £10,000. That figure is inclusive of VAT. I am grateful to both counsel for their assistance. Thank you very much.