Costs against a regulator
A decision of the Court of Appeal in relation to the award of costs against a prosecutor in a magistrates’ court would seem to have relevance to the award of costs in disciplinary proceedings against a regulator. The Court held that the consistent approach to the award of costs against a regulator has been that laid down by Lord Bingham in City of Bradford Metropolitan District Council v Booth, CO/3219/99 in relation to the powers of magistrates’ courts. They were:
1. Section 64(1) confers a discretion upon a magistrates' court to make such order as to costs as it thinks just and reasonable. That provision applies both to the quantum of the costs (if any) to be paid, but also as to the party (if any) which should pay them. :
2. What the court will think just and reasonable will depend on all the relevant facts and circumstances of the case before the court. The court may think it just and reasonable that costs should follow the event, but need not think so in all cases covered by the subsection. :
3. Where a complainant has successfully challenged before justices an administrative decision made by a police or regulatory authority acting honestly, reasonably, properly and on grounds that reasonably appeared to be sound, in exercise of its public duty, the court should consider, in addition to any other relevant fact or circumstances, both (i) the financial prejudice to the particular complainant in the particular circumstances if an order for costs is not made in his favour; and (ii) the need to encourage public authorities to make and stand by honest, reasonable and apparently sound administrative decisions made in the public interest without fear of exposure to undue financial prejudice if the decision is successfully challenged.:
Lord Bingham's three principles should apply where a regulatory body is reasonably carrying out its functions in court proceedings, at least where the rules of that court contain no presumption or principle that costs follow the event. The effect of the reasoning is that, just because a disciplinary body's functions have to be carried out before a tribunal with a power to order costs, it does not follow that there is a presumption that the tribunal ought to order the disciplinary body to pay the costs if it is unsuccessful, and that, when deciding what order to make, the tribunal should approach the question by reference to Lord Bingham's three principles. It is hard to see why a different approach should apply to a regulatory or similar body carrying out its functions before a court – unless the rules of that court have any presumptive principle inconsistent with those principles.
Perinpanathan, R (on the application of) v City of Westminster Magistrates Court & Anor (Rev 1)  EWCA Civ 40
6th Edition » | Chapter 14