Background

In Teaching Council of Ireland v MP[1], following the dismissal of a teacher for gross misconduct, the school made a complaint to the Teaching Council. Following this, the Council commenced a “Fitness to Teach” investigation. Despite MP offering an undertaking to the Council not to teach, it brought an application to the High Court to suspend MP pending the Fitness to Teach inquiry. In the High Court, MP offered a broader undertaking which encompassed a promise not to teach in Ireland or the European Union. This was accepted by both the Council and the Court.

Following the High Court proceedings, it became apparent that the students involved in the complaint would not participate in the Fitness to Teach inquiry. Accordingly, the main allegations against MP could not be pursued by the Council. As a result, MP went back to the High Court and withdrew his consent to the undertaking not to teach. Accordingly, the Council confirmed it would not pursue a suspension order against him as it was not in a position to investigate the more serious allegations made against MP.

Seeking costs

MP sought his costs against the Council for the High Court proceedings. Relying on Dowling v NMBI[2], MP argued that the normal rule that costs follow the event was applicable. The “event” in this case was the Council’s decision to discontinue the suspension application.

In Dowling, the court held that there was no firm precedent to the effect that costs should not be awarded against a regulatory body for a successful appeal by a professional against a sanction. The Council contended that the normal rule of costs had no application where it was performing its regulatory function in the public interest.

Ruling

President Kelly distinguished the judgment in Dowling on the basis that it concerned a statutory appeal by a professional and not an application by a regulator to suspend a regulated party. However, in determining that the ordinary rule of costs was not applicable in this case, the President confirmed that the approach of the English Court of Appeal in Baxendale-Walker[3] “is the appropriate one to adopt”. This is significant as Baxendale-Walker dealt with the same issue as the Dowling case – a successful statutory appeal by a professional against sanction.

In adopting the approach of the English Court of Appeal in Baxendale, the President determined that:

  • the application was brought by the Council in the public interest
  • the exercise of the Council’s statutory function places it in a different position to that of a party to ordinary civil litigation
  • an award of costs where a suspension is refused would have a chilling effect on the exercise of the Council’s functions identified in Baxendale
  • the public interest would not be served by the application of the ordinary costs rule to such applications
  • it would only be in circumstances where an application was improperly brought by a regulator, or the case being a “shambles from start to finish” that a costs order would fail to be considered

Impact for professional regulators

Although this judgment concerned the liability for costs of professional regulators when applying for a statutory suspension of a professional, regulatory bodies can be reassured by President Kelly’s clear endorsement of the wider Baxendale approach to costs.

The rationale of this approach is that a regulator is exercising its functions in the public interest and should not be inhibited from doing so. Accordingly, it appears that as long as a regulator does not bring proceedings improperly, or act with malicious intent, dishonesty or gross negligence, the ordinary rule of costs should not apply to regulators in professional disciplinary proceedings.