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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 >> Smart v Nursing and Midwifery Council [2015] EWHC 1807 (Admin) (01 July 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/1807.html Cite as: [2015] EWHC 1807 (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
		1 July 2015

(In the absence of the appellant)

1. MR JUSTICE PICKEN: The parties having had draft versions of my judgment and my having made some relatively minor alterations to reflect a comment I think made by Mr Amesbury and also some tinkering I think it is fair to say, I now hand down judgment and will sign the approved judgment.
2. If I can hand that to the associate and then there is a copy for the press if necessary but it will be available shortly via my clerk.
3. MR AMESBURY: I am grateful, my Lord. My Lord, there is an application on behalf of the respondent for the costs of the appeal.
4. MR JUSTICE PICKEN: Mr Smart does not seem to be here.
5. MR AMESBURY: No. Can I deal with that first, my Lord. I have here an attendance note from a paralegal at the NMC, a Mr Jeffs. He noted that on 22 June, when the draft judgment was received, he contacted Mr Smart by telephone to tell him that a copy of the judgment had been sent to his email and passed on the warnings about the judgment being a draft and confirmation of today's handing down. There has been no contact from Mr Smart since then.
6. MR JUSTICE PICKEN: But he did actually speak to him, did he?
7. MR AMESBURY: On the 22nd, my Lord, yes. Since then Mr Jeffs has attempted to contact him twice by telephone. On both occasions there was no answer and no opportunity to leave a voicemail. Mr Smart was emailed again by Mr Jeffs yesterday confirming which court the handing down was in and the time.
8. MR JUSTICE PICKEN: It seems there is no doubt that Mr Smart has had the opportunity to attend today and indeed the opportunity to have made comments if he wanted to on the draft judgment, so I think we can proceed on that basis. I should just say, I think the draft judgment recorded the fact that the hand down would be on the 1st, so there is that as well.
9. MR AMESBURY: The NMC then, as respondent, applies for its costs of successfully resisting the appeal. My Lord, I hope you have seen a schedule of the costs.
10. MR JUSTICE PICKEN: I think I was given one for the hearing before, was I not? I have probably got it here.
11. MR AMESBURY: I have a spare I can hand up if necessary.
12. MR JUSTICE PICKEN: Yes, could you provide me with the copy. Is it in the same form that it was?
13. MR AMESBURY: It is, my Lord.
14. MR JUSTICE PICKEN: So Mr Smart actually had it, did he, last time?
15. MR AMESBURY: Yes. I can confirm that there was an estimate for the time that would be spent at the hearing and that has not changed despite how long the hearing lasted.
16. MR JUSTICE PICKEN: Even though it was estimated for 3 hours, it in fact lasted a day, did it not?
17. MR AMESBURY: Indeed.
18. MR JUSTICE PICKEN: So you ask for costs in the total sum of £4,364?
19. MR AMESBURY: My Lord, yes, and I would ask you to assess those summarily now.
20. MR JUSTICE PICKEN: Dealing with the principle, Mr Smart, having brought an appeal which has not been successful, the ordinary position is that costs will follow the event. I am not aware of any circumstances which might make the ordinary position different in Mr Smart's case and I am taking it that there are not any that you are aware of, Mr Amesbury, or you would tell me, in fairness. So in those circumstances costs will follow the event and therefore Mr Smart is to pay the costs of the appeal. Then I turn to the question of the amount of costs. I have been provided with a schedule of costs in the total sum of £4,364. This is a schedule that is dated 15 June this year. It was available for the hearing last time. It is therefore a schedule that Mr Smart saw even though he has not attended today. It seems to me that the amount claimed is an entirely reasonable amount and I note in particular, and it was pointed out to me just now by Mr Amesbury, that the schedule was based on an estimated 3-hour length of hearing, in fact the hearing lasted all day and therefore probably that is a considerable under-reflection, as it were, of the actual costs. So on that basis, actually for two reasons, one is that that is an under-reflection of the actual costs and, two, in any event the costs seem to me to be reasonable, I do summarily assess the costs in the amount claimed of £4,364.
21. MR AMESBURY: I am grateful.
22. MR JUSTICE PICKEN: Is there anything else that needs to be dealt with now?
23. MR AMESBURY: No, my Lord.
24. MR JUSTICE PICKEN: An order needs to be drawn up reflecting the dismissal of the appeal, the making of the costs order and the summary assessment that I have just done.
25. MR AMESBURY: I am happy to have carriage of that.
26. MR JUSTICE PICKEN: I think if you could then send that through to the court office as well as my clerk. I think Mr Smart needs to be copied in on that but then hopefully it can be dealt with in short order. Is there anything else that we need to deal with now?
27. MR AMESBURY: No, my Lord.
28. MR JUSTICE PICKEN: Thank you very much.
29. (A short adjournment) 30. (In the presence of the appellant)
29. MR JUSTICE PICKEN: Good morning, Mr Smart. Mr Smart, we were listed for 10.00 am and so I came in at 10.00 am and you were not here and it was explained that there had been contact with you on 22 June to inform you the judgment was being made available in draft and that since then there has not been any contact. So on that basis we assumed that you were not coming, so I proceeded to hand down judgment and there is now a finalised version of it which you will now be provided with.
32. (Soto voce discussion)
30. There will be a version of that for you in a moment. It is in the form of the draft judgment that I think you have therefore seen with a few alterations mainly of a very minor type. So that is the judgment. I then proceeded to hear Mr Amesbury's submission on costs and, you not having attended, I proceeded to make a ruling that costs should be paid and they should be paid in the amount that has been claimed in the costs schedule. I then left court, returned to my room and then learnt that you had arrived. As I understand it, you misunderstood what time we were due to start, did you?
31. THE APPELLANT: First of all, my Lord, my apology for being late.
32. MR JUSTICE PICKEN: That is all right, do not worry about it.
33. THE APPELLANT: It was traffic I got caught up in (Inaudible). Although it is true that the gentleman did inform me about the date, so I was fully aware that it was 10.00 am, it's just that this morning when I was coming I was faced with traffic (Inaudible), so my sincere apology.
34. MR JUSTICE PICKEN: Your apology is accepted and I understand, that is fine. Did you want to say anything in relation to costs? Because I think in the circumstances I ought to give you the opportunity to say, if there is anything you wish to say, about why you should not pay costs. I have made my ruling but, Mr Amesbury, I am sure you understand that it is only right and fair that we allow Mr Smart to have his say. So Mr Amesbury has asked for his costs on the basis that the appeal has failed and of course there will need to be an order which Mr Amesbury is going to draw up that dismisses the appeal. He will send you a copy of that and then it will come to me and I will initial it once it has been approved. So that part of the order, I do not think there is anything you can say about that, the appeal has failed and that is that. As to costs, the usual position is that the party who loses pays the costs, that is the usual position, and it is on that basis that earlier when you were not here I proceeded to make a costs order against you, so requiring that you pay costs, and then I proceeded to assess those costs in the amount claimed, which is £4,364. Do you want to say anything about whether you should be ordered to pay costs or alternatively whether you should be ordered to pay costs in that amount? Is there anything you want me to take into account?
35. THE APPELLANT: Yes, my Lord. First of all, I would like to thank you very much for giving me a very fair hearing. I really appreciate that you gave me a fair hearing and I have no problem with any of the details that you have set out in your -- regarding the hearing.
36. MR JUSTICE PICKEN: You are very kind and I appreciate it, thank you.
37. THE APPELLANT: You did prepare me in a way before I left that day, you said that there are things that as you are a judge you cannot obviously oppose to it and I did mention that you could use your discretion. So in a way now, before I left here now, I was prepared from what the last comments you made that it might not be that what I expect. So in that sense now it was a shock to me but I wasn't unduly disappointed because you had fully prepared me for the eventuality. So I am very grateful to you for what you have done. Having said that now, I still believe that, not the court but I still believe that I have been treated unfairly by the NMC as well as my former employer and I don't think that I have been treated fairly but at the end of the day now that is where we are now and I have to accept it whether I like it or not, that is (Inaudible), so to me now I have no intention of taking this case any further, that is the end of it because I had an extremely fair hearing and that is the end of it, so I concede that I have been defeated in that respect and I just have to move on with my life. In terms of the costs now, I don't think I should be paying this money because in the first place now there is a saying that teach a man how to fish and you'll feed him for life. My income is already I'm not going to get any job anywhere, first of all with my age and secondly with the way things have gone now there is no way I am even thinking not only that I am heavily depressed, I've never been depressed in by life -- (The appellant became distressed).
38. MR JUSTICE PICKEN: Take your time. Do not worry. Have you got some water? I wonder if he could be given some water, please. If you prefer to sit down, if that is easier for you, Mr Smart, feel free to do that. Just take your time. As I say, Mr Smart, would you prefer to sit down?
39. THE APPELLANT: No, I'm okay.
40. MR JUSTICE PICKEN: It is absolutely fine, do not worry. Mr Smart, are you suggesting to me that you acknowledge that you lost, as you have just said, and essentially what you are saying, as I can see, is that you are in a situation which you find very distressing and in those circumstances you are inviting me to make an exception to the usual costs order, in other words either not to order costs at all or to order them in a lesser amount or whatever, because being realistic you are going to struggle to pay those costs, I think is what you are saying to me.
41. THE APPELLANT: Definitely. I went to the job centre to seek for a Jobseeker's Allowance, I was told that with my age there's no way I am going to be getting Jobseeker's Allowance because I'm a certain age, you're not going to get it, so it's a struggle, so even to pay for my accommodation it's a problem, so I don't see how I will be able to afford to pay this money. In the first place, I represented myself because I wasn't able to get legal aid and if I was in a position to get legal aid then surely I wouldn't have represented myself. So the fact that I couldn't seek legal representation goes to show that there is no way I am going to be able to afford to pay their costs.
42. MR JUSTICE PICKEN: No, I understand. I think you represented yourself very well, if I may say so. It is a very difficult thing to stand there and represent yourself and you did it very, very ably and with great courtesy and I do appreciate that but I understand the submissions you are making. Is there anything else you want to say about costs? First of all, we can talk about the figures if we have to in a moment, but about whether you should pay any costs? Because you are saying you are asking me to exercise a discretion that in your case you should not have to pay costs, and I do understand that submission. Is there anything else you want to say on that? You take a seat a moment.
43. Mr Amesbury, you have heard what Mr Smart says. Is your position maintained?
44. MR AMESBURY: I am afraid that it is, my Lord. Everybody acknowledges the difficulties that Mr Smart now finds himself in.
45. MR JUSTICE PICKEN: I am going to let Mr Smart speak further in a minute but I am just allowing him time to compose himself.
46. MR AMESBURY: My ultimate point on principle of costs will unfortunately have to be that the court's discretion does not include matters relating to the party's means and in terms of principle of costs it has is to be acknowledged that as a statutory body funded by the fees of registrants, appeals put the NMC to a significant amount of time and expense. The individual circumstances for Mr Smart are clearly distressing, I do not mean to be unrealistic about that but essentially the NMC has been put to the expense that is in the schedule in defending this appeal, which it had to do. For those reasons, I have to maintain my application for costs and I would invite you, my Lord, to take the view that what may happen on enforcement, there are means of costs being paid which should not displace the principle and I am afraid, despite Mr Smart's obvious distress, that has to remain my position.
47. MR JUSTICE PICKEN: In a different forum, the Crown Court, one can make a costs order and make it payable at a particular rate and so forth. Is that something that it is open to me to do here?
48. MR AMESBURY: My Lord, I am not aware of a power to make the order for costs payable by instalments but essentially what will happen to that order is it will become a judgment debt and then options are available for debtors, essentially, under a judgment. But ultimately the NMC is not going to be unrealistic enough to suggest Mr Smart make an application and pay costs of doing that, negotiations can occur between the parties in terms of how an order is to be paid, and I say no more than that.
49. MR JUSTICE PICKEN: And there may be compassion shown?
50. MR AMESBURY: There will be.
51. MR JUSTICE PICKEN: There will be compassion shown. And you say as a matter of principle, what, that it is really not open to me as a matter of principle to arrive at a decision that deprives your clients of costs?
52. MR AMESBURY: I am afraid, my Lord, that has to be my submission.
53. MR JUSTICE PICKEN: Just point me to the relevant bit. I obviously know the starting point.
54. MR AMESBURY: Rule 44.2 says the court has a discretion, 44.2(2) has the general rule and 44.2(4) says: "In deciding what order (if any) to make about costs -- " and that is at page 1421 of the 2015 White Book, " -- the court will have regard to all the circumstances", that is the general position, and those that are highlighted within 44.2(4) are conduct, partial success, admissible offers to settle --
55. MR JUSTICE PICKEN: There is no issue about conduct, is there? Because, as I said, and I do not suppose you disagree but anyway it is my view, Mr Smart has conducted himself with great courtesy and very impressively in the circumstances.
56. MR AMESBURY: There is no issue about the conduct of the appeal.
57. MR JUSTICE PICKEN: So it is purely that he has failed, and he has been very realistic in accepting that.
58. MR AMESBURY: Indeed.
59. MR JUSTICE PICKEN: Obviously there has been no offer or anything like that?
60. MR AMESBURY: No.
61. MR JUSTICE PICKEN: And, likewise, you would say that there is no unreasonableness on the part of your client in resisting an appeal and succeeding?
62. MR AMESBURY: Yes.
63. MR JUSTICE PICKEN: It is open to me, however, I suppose, is it, whether as a matter of principle or in assessing costs, to exercise a discretion in a way that reflects Mr Smart's very difficult circumstances?
64. MR AMESBURY: A summary assessment is done on the basis of were the costs proportionate and was it reasonable to incur those costs. Ultimately Mr Smart's circumstances, in my submission, will only ever come down to enforcement or how the costs are paid, and I am afraid that must be my position, my Lord. I mean, there can be orders for a percentage of costs but ultimately the reality is that such orders are intended to reflect partial success or perhaps success on particular issues and not others but that does not arise in this case, my Lord, in my submission.
65. MR JUSTICE PICKEN: If you look at 44.2(5) (and I am conscious that Mr Smart has not got this but I think he will trust me to read the relevant provisions, if that is all right):

i. "The conduct of the parties includes-

ii. ...

iii. (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue ... "

66. Now, I know that I have rejected Mr Smart's appeal in all respects but I think in one place I expressed sympathy with him in the sense of the employer knowing of the criminal conviction. It is slightly off point I accept but nonetheless. So I suppose what I am asking is that yes, the appeal was lost and yes, it was lost in a fairly comprehensive way but can I nonetheless conclude that it was reasonable for the issues to be raised? I am asking you not entirely rhetorically.
67. MR AMESBURY: My Lord, in terms of conduct as an issue which might displace the general rule, the issue of reasonableness of raising or pursuing a particular aspect of a party's case is really as a potential qualification to whether or not costs should follow the event. So if was said that Mr Smart might have succeeded on one ground but overall for whatever reason did not succeed on the appeal, then it might be said that it was not reasonable for the NMC to resist that particular facet of the appeal. I do not read, my Lord, 5(b) as saying that because it was reasonable for a party to bring a particular part of their unsuccessful appeal, that that should alter the general order.
68. MR JUSTICE PICKEN: But the NMC will be compassionate?
69. MR AMESBURY: My Lord, I can make that clear. The NMC is realistic about the means of unrepresented litigants and how they may go about paying costs order. I will have personal conduct of any negotiations after an order is made and I have no difficulty in saying in open court that I will consider payment by instalments and we will make such an offer to Mr Smart. If that displaces the court's concern and perhaps understandable --
70. MR JUSTICE PICKEN: It may not displace it but it helps it. Sorry, I talked over you but Mr Smart will have heard what you have said and obviously I have heard what you have said and I respect what you have said.
71. MR AMESBURY: In terms of potential costs orders that may be made, ultimately where we are is that the NMC is simply asking you to assess its costs summarily.
72. MR JUSTICE PICKEN: Ordinarily on a summary assessment, obviously when you have detailed assessment there is normally a percentage amount that is not recovered but on a summary assessment often that is not the approach adopted but I suppose were these to go to a detailed assessment, is there any possibility that they would end up becoming less than the amount? I appreciate that they are based on a 3-hour estimate and the hearing took all day, so I do see the point but I suppose it is open to me to round down a bit, is it not?
73. MR AMESBURY: My Lord, it would be open to you to take the view, for example, that work done on documents was not proportionate and it ought to be assessed in a different amount but that can only be done if the work done on documents is not proportionate. Mr Smart's ability to pay the sum, in my submission, does not come into that assessment.
74. MR JUSTICE PICKEN: That was 8 hours work, that, I think. Is that right? Over the page.
75. MR AMESBURY: My Lord, I am now looking at the wrong schedule, just give me a moment.
76. MR JUSTICE PICKEN: If you look at the second page. I am not sure whether Mr Smart has got this schedule, by the way. Do you have a copy?
77. MR AMESBURY: I handed him a copy this morning.
78. MR JUSTICE PICKEN: Thank you. I think it is the second page: 8 hours, Grade B hours, and Grade B is £242 an hour.
79. MR AMESBURY: That is essentially a nominal rate that is claimed on behalf of in-house counsel by comparison with comparable solicitors of comparable experience.
80. MR JUSTICE PICKEN: I see. And you are in-house counsel?
81. THE APPELLANT: My Lord, yes.
82. MR JUSTICE PICKEN: But that includes, does it not, just putting together -- oh no, the bundle is something different. So that includes the correspondence, including earlier this year.
83. MR AMESBURY: My Lord, essentially the time claimed considering documents amounts essentially to having read through all of the transcripts and the exhibits.
84. MR JUSTICE PICKEN: How does it actually -- £3,488 -- oh, I see, it is 8 hours --
85. MR AMESBURY: To consider the papers, 6 hours to draft the skeleton.
86. MR JUSTICE PICKEN: I see. Actually, I am struggling a bit. Sorry, bear with me. So item 1 over the page is 8 hours, £1,900. 6 hours for the skeleton, £1,452. But if you do 8 times £242 does it take you to £1,936?
87. MR AMESBURY: I do not have a calculator in front of me, my Lord.
88. MR JUSTICE PICKEN: Maybe it does.
89. MR AMESBURY: But 8 times £250 is £2000.
90. MR JUSTICE PICKEN: I see. Then 6 times £250 -- it is roughly the same. But on the first page it says the work has been done by you and by Mr Jeffs, who has got no grade. But how does that then translate itself into the Grade B hours because there is no reference to Mr Jeffs there?
91. MR AMESBURY: Because Mr Jeffs' work in terms of -- it appears that Mr Jeffs' work on documents --
92. MR JUSTICE PICKEN: He only did the bundles actually.
93. MR AMESBURY: Yes, it is claimed separately.
94. MR JUSTICE PICKEN: So that first entry to Mr Jeffs is actually not right. I see, I am so sorry.
95. MR AMESBURY: 1 and 3 go together.
96. MR JUSTICE PICKEN: 1 and 3 are wrapped up in that first entry, you are right. Okay, I have got it.
97. MR AMESBURY: My Lord, it would be open to you to find that a lesser sum would be proportionate but it would not, my Lord, if I may say so, be open to you to find that a lesser sum would be proportionate because of Mr Smart's circumstances.
98. MR JUSTICE PICKEN: No, I understand.
99. MR AMESBURY: I would remind you, my Lord, admittedly in Mr Smart's absence, that there has been a determination that the costs are reasonable already. I am sorry to have to do that.
100. MR JUSTICE PICKEN: Yes, all right.
101. MR AMESBURY: But, my Lord, it is entirely open to you on an assessment to say 8 hours is not proportionate, I award 6 hours.
102. MR JUSTICE PICKEN: Thank you very much.
103. MR AMESBURY: My Lord, I do not think I can assist any further.
104. MR JUSTICE PICKEN: Mr Smart, you have had a little sit down, which is I hope helpful. Now, what I was doing was having my discussion with Mr Amesbury about, first of all, the issue of principle, whether you should be ordered to pay any costs, and that is really what you have been talking to me about, is it not?
105. THE APPELLANT: Yes.
106. MR JUSTICE PICKEN: Then I had a discussion about whether if there is to be a costs order, the amount claimed can in any way be reduced. Now, just focusing on the first question, your position is that you are asking me to make an order that you do not pay any costs, I think, are you not?
107. THE APPELLANT: Yes, my Lord.
108. MR JUSTICE PICKEN: You have heard what Mr Amesbury has said by reference to the relevant Rules, which, as I said earlier, generally the position is the losing party pays, that is our system. There can be exceptions but I am struggling at the moment to see whether any of those exceptions apply in this case. It is not as though the NMC have acted unreasonably in resisting the appeal, or at least unless you tell me you disagree. After all, they have won. It is not as though there is an issue on the appeal that I have found for you but then said regrettably I have got to nonetheless dismiss the appeal for other reasons, I have fairly comprehensively decided against you, and you have been very kind in acknowledging that. So Mr Amesbury says that as a matter of principle the costs order ought to be that you pay and that my sympathy for you -- and I do have sympathy for you -- should not change matters. Do you want to add anything? As I understand it, your position nonetheless is please take the sympathetic line. Do you want to say anything more about that issue?
109. THE APPELLANT: Yes, my Lord. First of all, I appreciate Mr Amesbury's argument on the science. I know he is a young, vibrant, articulate young man and obviously wants the best for the NMC, so obviously I only admire his determination and zeal to do that.
110. MR JUSTICE PICKEN: He will be very pleased to hear you say that.
111. THE APPELLANT: But on the contrary to that now, I went for an employment as an able-bodied individual and then have been subjected to depression. It initially started off with work-related stress and that eventually led to an acute depression. I was hoping that going to the NMC I would get some kind of a relief, it's like somebody's running after you and you saw a policeman coming, then you feel relieved because you know that they will be there to protect you. So my ultimate decision was with the NMC now I will get the hearing and that the depression and all that would then disappear. Sadly, it moved on from acute depression, now I have got -- and it went on from acute depression to chronic depression, so I now have a chronic depression, and I appreciate what Mr Amesbury was saying, that there could be an enforcement, an enforcement of bailiff and other things can only exacerbate my chronic situation, not unless of course Mr Amesbury and the NMC will want to see my body dead because any court action of enforcing it through bailiff and enforcement agent can only, as I say, exacerbate my situation and ultimately I might consider suicide and I am worried that might be the outcome of it because I am not working at the moment, I have problems even paying for my accommodation and even to feed myself and although I do appreciate that he said that the NMC have a discretion or whatever but I am not binding to that discretion because when it comes to discretion, ones discretion is not a guarantee. So I would therefore plead with the court. I mean, I appreciate that the court has also got its limitation as to what to do but I strongly plead with the court to use his discretion and powers in an any shape or form that will help me not to pay any costs at all because any enforcement can only lead to the detriment of my life and I don't think that Mr Amesbury nor the NMC would want to hear me dead the following day. So I would sincerely plead with the court to see what discretion and measure that could be used to avail that.
112. MR JUSTICE PICKEN: If costs were to be ordered, and you have seen this costs schedule, you have heard me raise certain questions about, it is based on a half day, effectively, rather than what actually was a full day's hearing. I have already indicated, albeit in your absence and without the opportunity of hearing from you, that the costs seem to be reasonable but presumably you, having heard my discussions with Mr Amesbury, would suggest, would you, that the costs, if you do have to pay them, should be less than the amount claimed on the basis that maybe the work done on some of the documents was just too much? Would that be your position? I am slightly asking you to look at probably figures you have not looked at but I assume that you quibble with the amount as well as the principle?
113. THE APPELLANT: My Lord, the position is I don't have the means of paying because I am not working, so regardless of how much the amount is reduced to, as I say now, it can only exacerbate my situation because knowing that a bailiff is knocking on your door, knowing that you're getting letters through your door, and at the moment now I am renting a room in a family house and I don't think they're going to welcome bailiff letters coming through the door obviously. I am renting from a family whom I live with a family and I'm only entitled to one room, so at the end (Inaudible) cannot see ourselves getting letters through the post (Inaudible) giving 1 month's notice to find other accommodation, and so it is not in my interests that I allow letters to come through the door, and of course if a bailiff was to come to the door, they're going to knock on the door, the landlady or the landlord --
114. MR JUSTICE PICKEN: Mr Amesbury would, and has said in open court -- I understand that there can be no guarantee as to how things pan out but he nonetheless has said in open court that there will be a compassionate line taken with you and I would imagine that that would be a compassionate line that ought to mean that no bailiff needs to knock on your door, and I am seeing a nodding going on from Mr Amesbury there. So there can be no promise I think but nonetheless bear that in mind. Did you want to say anything else on costs, Mr Smart?
115. THE APPELLANT: At the moment, my Lord, I have nothing more to add. I am at the moment at the mercy of the court to see whatever, as well as at the mercy of Mr Amesbury, who is representing the NMC. So I have nothing more to add, my Lord.
116. MR JUSTICE PICKEN: Once again, thank you very much for your courtesy and clarity because it is appreciated. Please do take a seat.
117. Mr Amesbury, I just want to ask you, is the usual position on appeals of this sort that the NMC seeks costs and indeed gets them? Give me the benefit of your experience.
118. MR AMESBURY: My Lord, generally the reality is that where registrants who bring appeals are represented, they will have been advised on the risks of costs and one usually sees costs being paid within the standard 14 days, particularly where funding has been in place but where registrants bring appeals in person, they are obviously by definition unfunded and there is -- I mean, the NMC, if I can put it this way, accepts that as a regulator there are certain reputational factors which it would need to be very aware of before taking enforcement proceedings against an individual, an unrepresented registrant. I can tell you that there are registrants who are in agreements with the NMC to pay their costs orders by instalments.
119. MR JUSTICE PICKEN: But the usual position is that at the end of a successful appeal, with or without representation, a registrant or appellant is ordered to pay costs?
120. MR AMESBURY: My Lord, yes.
121. MR JUSTICE PICKEN: There is not some other body of practice out there that I should be made aware of?
122. MR AMESBURY: My Lord, no.
123. MR JUSTICE PICKEN: I recognise that throughout the hearing, the last hearing and this one, you have been very cognisant of your obligations given that there is an unrepresented opponent, so I am sure you would tell me if there were.
124. I need to rule on the question of costs. The circumstances in which I do rule are a little unusual because they follow a ruling I made probably a half an hour ago, a ruling I made without the benefit of having heard from Mr Smart because Mr Smart, through no fault of his, and I entirely accept that, was unable to attend at 10.00 am and therefore I assumed that his intention was not to attend and therefore I proceeded in his absence to listen to the costs application and to make a ruling that costs should be paid and then to summarily assess those costs in the amount claimed of £4,364. Having left court, I then was informed that Mr Smart had attended and I therefore thought it appropriate, and Mr Amesbury recognised just how appropriate it is, to reconvene and to ask Mr Smart what his position in relation to costs was. I therefore have heard from Mr Smart, who has very eloquently explained his position to me, which is to oppose the making of a costs order, essentially on the basis that he invites me to exercise my discretion in a compassionate way bearing in mind the difficulties which he has explained to me, consisting of chronic depression and an impossibility of obtaining paid employment. On that basis, Mr Smart asks me to exercise my discretion in a way which sees no costs order being made against him. Alternatively, but very much as an alternative, Mr Smart asks me to reduce the amount of costs claimed in the costs schedule on the basis that certain of the items set out there are not proportionate or reasonable and therefore not recoverable. But I stress that was Mr Smart's very much subsidiary position, his primary position being that no costs should be paid and essentially that any costs order in any amount is going to cause him significant difficulty.
125. Mr Amesbury's position was that his client maintains its application for costs. He explains to me that, although that is the NMC's position, nonetheless a compassionate line would be taken with Mr Smart were a costs order to be made and he points out to me that there are other cases in which registrants have entered into agreements that costs are paid in instalments and, whilst no promises can be made by Mr Amesbury, he makes those observations in order that I should know that Mr Smart's concerns about bailiffs knocking at the door of the house where he lives ought not to be as severe as perhaps might otherwise be the case. Mr Amesbury points out that, whilst of course I have a discretion in relation to costs, nonetheless the usual position is that costs should follow the event. Here, the appeal having failed, the event which therefore should be followed is the failure of the appeal, and therefore costs should be paid. He points me to CPR 44.2 where that general position is set out and he says that this is not a case where there should be a departure from that general position. It cannot be said, for instance, he points out, that the NMC has acted unreasonably in its resistance of the appeal, or in relation to aspects of it, and equally on the other side of the equation, it cannot be said that Mr Smart has had success in relation to particular aspects whilst nonetheless failing in relation to others and therefore in relation to ultimately the disposition of the appeal. He submits that my compassion for Mr Smart's plight is not a reason why a costs order should not be made and nor is it a reason why the costs claimed in the amount of £4,364 should be reduced.
126. I can assure Mr Smart that I have given this matter anxious consideration and I do indeed have a lot of sympathy for his position. Nevertheless, the position is that an appeal was brought, it has failed on all counts and it seems to me I am realistically obliged to make a costs order against Mr Smart, having regard to that being the general position and having regard to the fact that the NMC has been put to expense which it should not have been put to in circumstances where the appeal has been dismissed. I do not consider that it makes any difference that Mr Smart is himself not represented, as what I am focusing on here is the position of the NMC in having to resist the appeal.
127. So in those circumstances, and I say it with a degree of regret, I do make the costs order sought.
128. I then turn to the question of amount. I bear in mind Mr Smart's primary point, which is that whatever the amount, he is not going to be able, or at least he is going to find it very difficult, to pay the amount in any sum. Previously, in Mr Smart's absence, I looked at the costs schedule and I noted that it was prepared on the basis that the substantive hearing that took place a week or so ago was going to last 3 hours, whereas in fact the hearing lasted all day but nonetheless the costs claimed are still claimed on the basis of the shorter hearing. I noted that in taking the view at that stage that the total amount claimed of £4,364 was reasonable and therefore that there should be a costs order in that amount. I continue to note that but equally I am bound to note that I can only assess the costs that I am being asked to assess and if the position is that the NMC is not seeking more costs in respect of the hearing itself, then that is the NMC's look-out, as it were. So whilst noting that, it seems to me it is still open to me to look at the costs which are claimed in relation to non-hearing related matters, specifically the so-called work done on documents. That element is £3,488 and it includes, I note, the drafting of the skeleton argument but also the considering of documents, including preparation time, as well as the preparation of bundles.
129. It seems to me that here I can take the view that £3,488 is perhaps too much but not by much and in the circumstances what I am prepared and going to do is to reduce the amount of costs claimed from £4,364 in a fairly broad-brush way down to £4,000. I do appreciate that there is no science in that. I also appreciate that to Mr Smart it may not make a lot of difference but nonetheless it is what I am going to do and so I make an order for costs that Mr Smart pays the costs and I summarily assess those costs in the amount of £4,000.
130. The usual position, Mr Amesbury, is that the costs order is then the costs are paid within 14 days, or whatever. Tell me on this, obviously it is open to me to extend that but is it open to me to, I do not know, impose a stay or anything like that pending discussions?
131. MR AMESBURY: My Lord, in theory I see no reason why there could not be an order saying any such order above shall not be -- so, essentially, costs are payable within 14 days of today is the general rule.
132. MR JUSTICE PICKEN: Indeed, but I would extend that anyway just because I am going to take it that I might as well.
133. MR AMESBURY: Indeed. That is the starting point. I mean, might the court perhaps order that unless by a certain date it has been told that an agreement has been reached on payment of that sum of costs, then it shall be payable from some unspecified point in the future, which would be -- I am not aware of a costs order in those terms but there perhaps is not a theoretical objection to an order in those terms. My Lord, I am anxious to avoid protracted correspondence by email.
134. MR JUSTICE PICKEN: And indeed also with the court.
135. MR AMESBURY: Could I though suggest that, having cognisance of what the court is trying to achieve by the costs order, could I perhaps send a suggested draft to be approved?
136. MR JUSTICE PICKEN: Yes.
137. MR AMESBURY: And it will be along the lines of unless the parties indicate to the court that an agreement for the payment of the costs set out at paragraph X above has been reached, then those costs shall be payable within, say, 28 days.
138. MR JUSTICE PICKEN: Of today?
139. MR AMESBURY: Unless by 28 days of today the parties indicate to the court, those costs shall be payable.
140. MR JUSTICE PICKEN: Payable within 28 days of that?
141. MR AMESBURY: Yes.
142. MR JUSTICE PICKEN: Which would give Mr Smart 2 months, as it were. I do not want to confuse things and I do not want to also, by trying to assist Mr Smart, make his position more difficult by doing that. Would I be making his position more difficult by doing that? The alternative is the order is he pays within 28 days and then he is left to discuss the matter with you and it is your client's decision as to what do about it.
143. MR AMESBURY: All such an order would achieve ultimately would be the court making mandatory a period for the parties, well ultimately the NMC, to consider some form of proposal and if a proposal was not arrived at -- essentially, my client has to be realistic about how costs would be recovered from somebody in Mr Smart's situation. So even if the order was payment in 28 days, that consideration would have to happen anyway.
144. MR JUSTICE PICKEN: All that we are here discussing is giving Mr Smart, as it were, another 28 days. It does not sound as though you object to it, although you want to just try and formulate something, and my only concern now is whether I am doing something which is to Mr Smart's disadvantage. I do not think I am. No, I do not think I am because I am giving him a longer time. Let me just explore that.
145. Mr Smart, you have heard the order that I have made.
146. THE APPELLANT: Yes, I have.
147. MR JUSTICE PICKEN: The usual position is that costs then are payable within 14 days. I am going to take it in any event that you would like more than 14 days, even assuming that you would be able to pay these costs, and so I am going to take it that it is 28 days that you would like and you can have that but what I am now exploring with Mr Amesbury is a slightly unusual order, which defers the order coming into effect at all for, say, 28 days to enable discussions between you and him, or his client, as to what sort of arrangements might be do-able, and only then, if those arrangements do not get agreed, would the cost orders then come into effect and then they would be payable within 28 days and thereafter. Do you want to make any comments on that? I am trying to accommodate the difficulties that you have very clearly explained to me. I appreciate your position is that you cannot pay the costs and so it may be that nothing more needs to be said.
148. THE APPELLANT: That's right, my Lord. I don't think I have anything more to add.
149. MR JUSTICE PICKEN: But you would not resist the sort of order I am suggesting, which, as I say, is trying in effect to ensure that there are the discussions that I am being told by Mr Amesbury there will be?
150. MR AMESBURY: My Lord, if I may, might a simpler approach be to perhaps suggest payment of the costs is to be within 56 days and I undertake to the court that the NMC will contact Mr Smart to open negotiations?
151. MR JUSTICE PICKEN: I think that might be easier. It does not need to be an undertaking in the order, it is just you have told me and if you do not then obviously it is a serious matter. I think that is probably easier. So what I am saying, as I said, the ordinary position is 14 days and what I am now going to suggest is that you effectively have 2 months, so it is 56 days, and the idea being that Mr Amesbury will contact you, or his client will contact you, in the meantime to try to come to an accommodation. He has undertaken to do that and he will do that. I assume you are content, albeit you would rather there was no order at all but you are content that 56 days is a sensible length of time?
152. THE APPELLANT: Yes, my Lord, because I appreciate that your hands are also tied, there's not much you can do and I am very much grateful to you for all the efforts you are making and I can just only say I am very grateful and appreciative to you.
153. MR JUSTICE PICKEN: Mr Smart, once again I thank you. That will be the order then: appeal dismissed, costs to the paid in the sum of £4,000, summarily assessed, 56 days. Mr Smart -- you do not need to stand up, do not worry -- Mr Amesbury is going to draw up an order, he is going to send it to the court and my clerk and you will be copied in. It would be helpful if you could confirm you agree to the form of the order, I appreciate you would rather you were not being ordered to pay costs at all, but to the form of the order I have just described. If you do not agree, I am going to assume that nonetheless the order should be made in those terms because that is what I am ordering and all Mr Amesbury is doing is putting into words what I have explained but obviously if you do need to say anything by email then you should feel free to do so on the form of words.
154. THE APPELLANT: My Lord, taking into account that I had a very fair hearing, I do not object to anything, so whatever is put down I just have to go by it.
155. MR JUSTICE PICKEN: That is very kind. What would be perfect would be when you receive the email, look at the words, see if you are happy with what they say and then if you just respond, and you can perhaps even just tell Mr Amesbury, who can then tell my clerk, and then I know I am signing an order that both parties are content that reflects what I have ordered but I am sure Mr Amesbury can speak to you about the mechanics of it afterwards.
156. MR AMESBURY: Yes, indeed.
157. MR JUSTICE PICKEN: Thank you both very much, I am going to rise.