The FCA – Transformation to Assertive Supervision
On 18 May 2016, a professional conduct panel (‘the Panel’) of the National College of Teaching and Leadership (‘NCTL’) found proven allegations in respect of Greg Wallace, a Head Teacher, which amounted to unacceptable professional conduct (UPC). The allegations were broadly that Greg Wallace had breached financial governance standards thereby failing to ensure the appropriate use of public money, had failed to declare a conflict of interest and had disclosed confidential information to an individual in the course of a competitive bidding process.
Despite finding that the allegations found proven amounted to UPC, the Panel decided not to make a recommendation to the Secretary of State for Education (SoS) pursuant to paragraph 4.74 of the Teacher misconduct – Disciplinary procedures for the teaching profession for a prohibition order which would prevent Greg Wallace from teaching. The Panel stated:
‘In carrying out the balancing exercise, the Panel has considered the public interest considerations both in favour of and against prohibition, as well as the interests of Mr Wallace…….
Even though there were behaviours that would point to a prohibition order being appropriate, the Panel went on to consider whether or not there were sufficient mitigating factors to militate against a prohibition order being an appropriate and proportionate measure to impose, particularly taking into account the nature and severity of the behaviour in this case. Mr Wallace has a previous good history and the Panel accepts that his actions were not consistent with his character as a whole…….’
Citing Greg Wallace’s character, dedication to education, positive testimonials and remorse/insight, the Panel decided not to make a recommendation to the SoS for prohibition.
The SoS reviewed the matter, and took an alternative view to the Panel. The SoS considered that the Panel had taken insufficient account of the public interest considerations in the case, and the real potential that public confidence in the profession would be weakened should the conduct not be ‘treated with the utmost seriousness’. The SoS considered that the Panel had afforded too much weight to the mitigating factors and testimonial evidence, and decided to prohibit Greg Wallace from teaching with a review period of two years.
With the assistance of The Reflective Practice, Greg Wallace applied to the High Court (the Court) to avail himself of the right to rely upon Civil Procedure Rule (CPR) Part 52.19 on the limitation of costs.
Part 52.19 states:
(1) In any proceedings in which costs recovery is normally limited or excluded at first instance, an appeal court may make an order that the recoverable costs of an appeal will be limited to the extent which the court specifies.
(2) In making such an order the court will have regard to—
(a) the means of both parties;
(b) all the circumstances of the case; and
(c) the need to facilitate access to justice.
Greg Wallace’s application to rely on Part 52.19 was considered by the Honourable Mr Justice Green.
Submissions on behalf of Greg Wallace were that the decision of the of the SoS deprived him of his livelihood, and was therefore draconian. The effect of this was that he was not in a position to fund legal representation without the assistance of friends.
Considering the matters at hand, Mr Justice Green noted that the SoS ‘plainly has the means to defend the appeal with appropriate solicitors and counsel. The Appellant, to the contrary, has no ability independently to the fund the appeal without the assistance of friends. There is thus substantial inequality of arms, the Appellant personally has no independent or freestanding funds to pursue the appeal’.
Mr Justice Green also noted that the SoS had adopted a position in contrast with the recommendation of the Panel which heard the case.
Additionally, Mr Justice Green noted that Greg Wallace’s grounds of appeal were set out in a concise skeleton, and were narrowly defined, such that any hearing could be conducted efficiently. He drew upon previous determinations which made clear that the Court has jurisdiction to apply Part 52.19. At paragraph 7 of the decision Mr Justice Green stated:
‘Finally, taking into account all relevant facts and matters in my judgement the costs cap is necessary to facilitate access to justice. For these reasons I have granted the order sought’.
CPR Part 52.19
Part 52.19, has only been in force since 3 October 2016. The notes in the White Book refer back to rule 52.9A, which was in force from 1 April 2013 to 2 October 2016, having been introduced by the Civil Procedure (Amendment) Rules 2016.
The provision has been used in other jurisdictions including Drummond v Revenue and Customs Commissioners  UKUT 221 (TCC) and Parker v Butler (personal injury)  EWHC 1251, but it appears to be the first time that this provision has been used in relation to a case involving a regulator.
Those that represent regulated individuals in relation to appeal proceedings will be aware that one of the key issues is the matter of costs. The appellant can be subject to a costs bill which is so prohibitive they decide not to avail themselves of the right to an appeal, even where advised there is merit. This decision is an interesting development in the regulatory sector. It may provide those who represent regulated persons, and litigants in person, with a route to appeal where they otherwise would not have done so due to the issue of costs. It should be noted that Mr Justice Green was very clear that his decision was made with reference to that the overall circumstances of this case and the ‘need to facilitate access to justice’. As such, this decision should not be seen as opening a floodgate to applications for appeal that lack merit.
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