England and Wales Care Standards Tribunal

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Akhter & Anor (Woodbine Villa) v NCSC [2002] EWCST 116(NC) (27 October 2003)

Woodbine Villa (Shahid Akhter and Tanveer Salam) v NCSC
[2002] 116.NC

Before:

Mr John Reddish (Chairman)
Ms Susan Gilhespie
Ms Wendy Stafford

Hearing date: 13th October 2003

Application

1. On 13th March 2003 the National Care Standards Commission ("NCSC") applied (as Respondent to an appeal by Shahid Akhter) under regulation 24 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 for a costs order following the striking out of the appeal on the ground that it was misconceived.

Representation

2. At the hearing Mr H.J.S. Jacks of Mills & Reeve represented the NCSC and Shahid Akhter represented himself.

Facts

3. In July 2000 Shahid Akhter and Tanveer Salam purchased the care home known as Woodbine Villa in Rushden, Northamptonshire.

4. Inspections of the premises by the Northamptonshire County Council between December 2000 and April 2001 revealed many problems. Shahid Akhter and Tanveer Salam tried to rectify these. They spent substantial sums on improvements. However, the Inspection Unit was not satisfied with their efforts and, in July 2001, the County Council proposed that their registration be cancelled.

5. In November 2001 Shahid Akhter decided to close the part of the home known as "The Bungalow", which was separated from the main house by some distance, because he and his partner found themselves unable to comply with the requirements of the Inspection Unit in relation to that part of the property.

6. Having received an objection to the proposal to cancel the registration, the Northamptonshire County Council arranged a hearing before a panel of councillors. The hearing took place over 2 days on 23rd November 2001 and 18th January 2002. Shahid Akhter and Tanveer Salam were represented by their solicitors. They successfully resisted the cancellation proposal and they were permitted, subject to conditions, to continue to operate Woodbine Villa as a care home.

7. In February 2002 Shahid Akhter employed Miss Sarah McClatchy as the manager of the home and also employed her friend as a "domestic and handyman". They succeeded in attracting some new residents to the home but there were never more than 9 in residence. The minimum number required to make the business viable was 11.

8. In June and July 2002 NCSC Inspectors identified numerous breaches of the Care Homes Regulations 2001 relating to staffing levels, the administration of medication to residents, the moving and handling of residents, staff qualifications and the preparation of care plans.

9. On 1st July 2002 Miss McClatchy resigned as manager. She and her friend left one week later. On 18th July 2002 Shahid Akhter tried unsuccessfully to recruit another manager. On 19th July 2002 he decided that he had no alternative but to close the business. By then there were 8 residents. He planned an orderly closure, with the residents being moved to alternative accommodation over a period of time.

10. On 23rd July 2002 Shahid Akhter applied, as a person registered under Part II of the Care Standards Act 2000, to the NCSC, as the registration authority, under the provisions of section 15 of the 2000 Act, for the cancellation of the registration of Woodbine Villa.

11. On 25th July 2002 Shahid Akhter had a meeting with Mrs Ager, the Principal Inspector, and others during which it appeared to him that the NCSC would be prepared to accept a voluntary cancellation of the registration. Arrangements were made for a manager (Ms Noreen Millet) to be supplied by Northamptonshire Social Services to oversee the closure of the business.

12. On 28th July 2002 Shahid Akhter travelled to Canada for a pre-arranged visit. He decided to keep his departure "confidential" to avoid spreading alarm and despondency amongst the remaining staff of the home but Ms Millet was aware that he would be away. It was agreed that Tanveer Salam, who had given up his employment in London on 8th July 2002 to work full time at Woodbine Villa, would undertake, with the other remaining staff, the work necessary to achieve a "smooth closure", under the supervision of Ms Millet. Almost immediately, disputes arose between Tanveer Salam and Ms Millet concerning the employment of expensive, agency staff and her alleged refusal to undertake care duties. Shahid Akhter formed the view that Ms Millet was "on a secret spying mission on behalf of the NCSC". In these circumstances, arrangements for the care of residents rapidly went from bad to worse.

13. By a letter dated 5th August 2002 the NCSC informed Shahid Akhter that they were unable to accept his application for voluntary cancellation of the registration of Woodbine Villa because of the lack of compliance with requirements imposed following earlier inspections of the premises.

14. On 8th August 2002 the last remaining resident left Woodbine Villa and the business was formally closed on 9th August 2002.

15. On 9th August 2002 the NCSC gave Shahid Akhter notice, under section 17(4) of the 2000 Act, of a proposal to cancel the registration otherwise than in accordance with his application under section 15(1)(b) of the Act.

16. Having received no representations from Shahid Akhter within the prescribed period of 28 days, on 11th September 2002 the NCSC decided to adopt the proposal to cancel the registration and served notice of that decision on Shahid Akhter.

17. On 13th September 2002 the NCSC received a letter from Shahid Akhter (dated 6th September 2002 but postmarked 12th September 2002) in which he said that he objected to the proposal to cancel the registration and would make a full submission as soon as possible.

18. On 17th September 2002 Mr Fraher of the NCSC notified Shahid Akhter of his right to appeal to the Tribunal against the Notice of Cancellation within 28 days and suggested to him that he should seek legal advice immediately.

19. On 4th October 2002 Shahid Akhter wrote a letter to the NCSC in which he purported to exercise his right of appeal to the Tribunal. The NCSC forwarded this letter to the Tribunal. The Tribunal treated this letter as an application to appeal under section 21 of the 2000 Act.

20. On 15th November 2002 Mr Walker, a member of the Tribunal's staff, sent a Form B1 (the application form referred to in paragraph 1(2) of Schedule 1 to the 2002 Regulations) to Shahid Akhter and invited him to complete it. On 22nd November 2002 Mr Walker asked Shahid Akhter to return the completed Form by 26th November 2002.

21. On 3rd December 2002 Shahid Akhter notified the Tribunal that he was preparing a full statement, which he proposed to submit within about 3 weeks.

22. On 6th December 2002 the President made an order, pursuant to regulation 10(1) of the 2002 Regulations, that unless Shahid Akhter submitted a completed Form B1 to arrive no later than 16th December 2002, the case might be determined in favour of the Respondent.

23. By an e mail dated 15th December 2002 Shahid Akhter submitted a completed Form B1 to which he attached various other documents relating to the case, including the written submissions made on his behalf to the hearings in November 2001 and January 2002, the formal complaints he had made about the conduct of the Inspectors, Miss McClatchy's letter of resignation, the minutes of a management meeting held on 13th June 2002 and a business evaluation report in respect of Woodbine Villa.

24. In a Form B6 (further information form) dated 31st January 2003, Mills & Reeve said that they wished to have determined, as a preliminary issue, whether the appeal should be struck out on the basis that Shahid Akhter had failed to set out any substantive grounds of appeal in his Form B1.

25. On 1st February 2003 Shahid Akhter filed a Form B5 (further information form) in which he requested that various directions be given at a preliminary hearing.

26. In a letter dated 12th February 2003 Mills & Reeve argued that the Form B5 filed by Shahid Akhter added nothing to the applicants' case.

27. On 17th February 2003 the President fixed 13th March 2003 as the date for the preliminary hearing and Mr Walker notified Shahid Akhter and Mills & Reeve of that date by e mail. Mr Walker referred in his e mail to the fact that the preliminary hearing had been arranged "to discuss, amongst other things, the motion to strike out this case made by the Respondent".

28. On 13th March 2003 Mr Jacks attended the preliminary hearing before the President on behalf of the NCSC. Neither Shahid Akhter nor Tanveer Salam attended the hearing. The Secretary of the Tribunal telephoned Shahid Akhter on the number supplied by him in the Form B5 and received a recorded message to the effect that the number was unobtainable. The Secretary then telephoned Tanveer Salam. He answered the call and said that his partner was out of the country and that he, Tanveer Salam, had no knowledge of the hearing.

29. The President considered whether he should adjourn the hearing. He decided that it would be inappropriate to do so, having regard to the provisions of regulation 7(6) of the 2002 Regulations, the history of the matter and the interests of both parties.

30. The President heard a submission by Mr Jacks on behalf of the Respondent that the appeal should be struck out pursuant to the provisions of paragraph 4(1)(b) of Schedule 1 to the 2002 Regulations as being misconceived. The President held that the Forms B1 and B5 submitted by Shahid Akhter disclosed no grounds of appeal relevant to the decision taken by the NCSC and that the specific reasons why the Applicants' registration was cancelled by the NCSC on 11th September 2002 were nowhere addressed in those documents. He concluded that the appeal had no prospects of success whatsoever and was totally misconceived and therefore ordered that it be struck out.

31. The President also considered the application made by Shahid Akhter on 23rd July 2002, as a person registered under Part II of the 2000 Act, to the NCSC, under section 15(1)(b) of the 2000 Act, for the voluntary cancellation of the registration of Woodbine Villa. He held that, on the assumption that the response by the NCSC dated 5th August 2002 was a decision of the registration authority within the meaning of section 21(1)(a) of the 2000 Act, an appeal would have to have been brought against it within 28 days (as provided in section 21(2) of the Act); that no appeal had ever been brought against that decision and that any appeal against the refusal to cancel the registration would be out of time.

32. Mr Jacks applied on behalf of the Respondent for a costs order. The President reserved the question of costs until the Respondent submitted a schedule of costs and a skeleton argument as to why the Applicants had acted unreasonably in bringing or conducting the proceedings.

33. On 14th March 2003 a copy of the President's decision was sent to both parties.

34. On 9th April 2003 Mills & Reeve filed a schedule of costs in the sum of £3,615.50 and a skeleton argument in support of their contention on behalf of the Respondent that the Applicants had acted unreasonably in bringing or conducting the proceedings.

35. On 15th April 2003 the Secretary sent copies of the schedule of costs and the skeleton argument to Tanveer Salam and Shahid Akhter and invited them to respond within 14 days.

36. In an e mail to the Tribunal dated 26th April 2003 Shahid Akhter acknowledged receipt of the decision of the President dated 13th March 2003 and the letter dated 15th April 2003 enclosing the "Respondent's claim of costs". In relation to the former, Shahid Akhter said that he was out of the country from 17th February 2003 until 25th March 2003; that he never received the e mail and that he was unaware of the directions hearing. He expressed surprise that the e mail was not "backed up" by a letter in the post. He also expressed disappointment at the decision to strike out the appeal. He said that he could not afford to hire solicitors; pointed out that he had attached 12 documents to the Form B1 in one of which he had specifically requested directions and suggested that he had raised "ethical questions regarding the role of the Principle (sic) Inspector" which were not mentioned in the judgment. He requested that the "appeal process should be considered again" because he was unaware of the directions hearing; because correspondence "was not posted through regular Royal mail"; because no date was set for "exchange of correspondence and documentations" with the Respondent and because the Tribunal should have ensured that the appellants "understood the due process".

37. In relation to the claim for costs, Shahid Akhter said that he and his partner opposed any claim and wished "to lodge a counter-claim of expense of around £15,000" incurred in defending themselves "against [the] previous proposal by the then Northamptonshire Inspection Unit to cancel" their registration.

38. On 14th July 2003 the President decided to treat the e mail dated 26th April 2003 as an application by Shahid Akhter for a review of his decision dated 13th March 2003 under regulation 25(1)(b) of the 2002 Regulations. The President also decided that, since the application for a review was made more than ten working days after the decision was sent to Shahid Akhter, the application was not sent in time. The President further decided that there was no basis upon which he could properly extend the time for the application for a review under regulation 35 of the 2002 Regulations.

39. Following further representations from Shahid Akhter, on 21st July 2003 the President nominated the Chairman, pursuant to regulation 5 of the 2002 Regulations, as a chairman unconnected with the case, to deal with the following matters:
- a further review of whether the time for an application for a review of the decision to strike out could be extended;
- if the time for the application to review the decision to strike out could be extended, how to proceed; and
- if the decision to strike out could not be reviewed because the application was out of time and the time could not be extended, the costs application of the Respondent.

40. On 28th July 2003 Mr Jacks of Mills & Reeve submitted in writing that the President had no jurisdiction to direct a further review under the Regulations since such a review would be tantamount to the Tribunal hearing an appeal from its own decision. Mr Jacks also set out the submissions on behalf of the Respondent as to why the application for a review should be rejected and as to why the order striking out the appeal should not be set aside.

41. On 1st August 2003 the Chairman delivered his decision in writing. He held that:
(a) the e mail dated 26th April 2003 from Shahid Akhter, in which he requested that the "appeal process should be considered again" was, in effect, an application for an order that the order striking out his appeal be set aside and that his appeal be heard by the Tribunal;
(b) the Tribunal has no inherent power to set aside its own orders and the powers of the President and of the nominated chairman are limited to those granted to them by the Regulations;
(c) the powers of the Tribunal are set out in regulation 26 of the 2002 Regulations, which provides that the Tribunal may, having reviewed all or part of a decision under regulation 25, set aside the decision and substitute such other decision as it thinks fit or order a rehearing before the same or a differently constituted Tribunal;
(d) the power to set aside a decision therefore arises only on a review under regulation 25;
(e) regulation 25(1) does not apply to decisions made by the President under paragraph 4(1) of Schedule 1 to the 2002 Regulations and the President therefore does not have the power to set aside a decision to strike out an appeal made by him under that paragraph;
(f) having made his decision to strike out the appeal in this case, the President was functus officio;
(g) Shahid Akhter had a right of appeal to the High Court but did not have a right to apply to the President for a review of the decision or for an order setting aside that decision.

42. The Chairman therefore held that it was not necessary for him to decide whether there was any basis upon which the President could or should have exercised the power, given to him by regulation 35, to extend the time limit for the application for a review of his decision. However, the Chairman noted that a copy of the decision was sent to Shahid Akhter on 14th March 2003 and that, on his own account of the matter, he returned to this country on 23rd March 2003 but his purported application for the decision to be set aside was not made until 26th April 2003.

43. As to the Respondent's application for a costs order, the Chairman held that paragraph 4(1) of Schedule 1 does not give the President the specific power to make a costs order after striking out an appeal. He noted that regulation 5(3) gives the President or the nominated chairman the power to determine "any application made in relation to the case" and accepted that it was arguable that the Respondent's application for a costs order was an application made "in relation to the case" which could be determined by the President or the nominated chairman. However, the Chairman also noted that an application for a costs order is governed by regulation 24 (which provides that "if in the opinion of the Tribunal a party has acted unreasonably in bringing or conducting the proceedings, it may make" a 'costs order') and referred to regulation 24(2) (which provides that the Tribunal must consider, amongst other things, whether the paying party is able to comply with a costs order). He concluded that, in cases where the relevant matters are hotly contested, decisions about them should be made by an appointed Tribunal rather than by the President or the nominated chairman, even where the appeal has been struck out so that, strictly speaking, there is no longer any "case" to be heard or determined by the Tribunal.

44. Accordingly, the Chairman decided that it would be appropriate for the decision as to whether Shahid Akhter and/or Tanveer Salam should be ordered to pay £3,615.50 or any sum or other sum to the NCSC to be made by a full Tribunal.

45. The President then appointed the Chairman and two members of the lay panel, Ms Gilhespie and Ms Stafford to hear and determine the application for a costs order.

46. At the hearing Mr Jacks repeated and amplified the submissions made by him in the skeleton argument submitted on 9th April 2003. Shahid Akhter explained the nature and relevance of the documents submitted by him with the Form B1 on 15th December 2002 and gave evidence as to his means.

47. As a result of the failure of the business conducted at Woodbine Villa Shahid Akhter has no formal employment and is heavily in debt. He is managing to generate some income (about £600 to £700 per month on average) which he uses to contribute to the support of himself, his wife and their 4 infant children. He is assisting a friend who is in business in Dubai. His income is insufficient to meet his normal domestic outgoings (including mortgage instalments of £500 per month). He is obliged to rely on his wife's earnings and is unable to service his bank debts, which amount in total to approximately £35,500. The property at Woodbine Villa is on the market for sale but remains unsold. The interest on the outstanding mortgage of £220,000 is not being paid and the mortgagee is threatening possession proceedings. It is likely that, when the property is sold, there will be a substantial "negative equity". Shahid Akhter has no savings or investments, save for some modest holdings of shares in two former Building Societies, obtained when those institutions were transformed into banks, held jointly with his wife. He describes himself as "bankrupt" and asserts that that his partner, Tanveer Salam, is in a similar position.

The law

48. An application for a costs order is governed by regulation 24 of the 2002 Regulations. This regulation provides that, if in the opinion of the Tribunal a party has acted unreasonably in bringing or conducting the proceedings, it may make an order (a 'costs order') requiring that party ('the paying party') to make a payment to the other party ('the receiving party') to cover costs incurred by the receiving party.

49. Regulation 24(2) provides that, before making a costs order against a party, the Tribunal must invite the receiving party to provide a schedule of costs incurred by him and must invite representations from the paying party and consider any representations he makes; consider whether he is able to comply with a costs order and consider any relevant written information which he has provided.

50. Regulation 24 creates a presumption in favour of no order for costs. This presumption can be rebutted by proof that the paying party has acted unreasonably. The existence of a power to make a costs order is not intended to be a disincentive to those who genuinely believe that they have valid reasons for challenging decisions, which may have profound, adverse effects on their ability to work, from bringing their cases to the Tribunal. However, costs orders are more likely to be made in proceedings in the Care Standards Tribunal than in many other Tribunals where the regulations are more restrictive.

51. Regulation 24 of the 2002 Regulations may be contrasted with, for example, regulation 40 of the Special Educational Needs Tribunal Regulations 2001. This regulation provides that "the tribunal shall not normally make an order in respect of costs and expenses but may … make such an order against a party … if it is of the opinion that that party has acted frivolously or vexatiously or that his conduct in making, pursuing or resisting an appeal was wholly unreasonable". It follows that, whereas a party to an appeal to the SENDIST has to be shown to have been "frivolous", "vexatious" or "wholly unreasonable", a paying party in proceedings before the CST need only to be shown "not to have acted in accordance with reason or good sense" (see the definition of "unreasonable" in the Shorter Oxford Dictionary).

52. Parties to appeals to the CST may expect to be ordered to pay some or all of the costs incurred by their opponent if their conduct of the proceedings falls below the standard reasonably to be expected of a litigant. However, litigants acting in person are not to be judged by the standards of qualified and experienced lawyers and a litigant could not be held to have acted irrationally merely because he or she decided not to retain the services of a lawyer. The Tribunal must take into account the particular circumstances of the individual paying party when determining whether he or she has acted unreasonably.

53. A party will not be held to have acted unreasonably in bringing proceedings merely because he or she has persisted with a case which is ultimately rejected. Further, it is unlikely that a party acting in person would be held to have acted unreasonably in bringing proceedings merely because he or she pursued an appeal which, with the benefit of hindsight or greater insight, was seen to be obviously unmeritorious. However, each case must be determined on its own facts.

54. Costs orders are more likely to be made where a party has acted unreasonably in conducting the proceedings. Persistent failures to comply with the directions given by the President or the nominated chairman and, in particular, failures to comply with "unless orders" made pursuant to regulation 10 of the 2002 Regulations, are likely to result in findings of unreasonable conduct. However, inadequate written or oral presentations of cases by parties acting without the benefit of professional assistance, though usually unhelpful to the Tribunal and often irritating to their opponents, are unlikely to be characterised as unreasonable.

Issues

55. It was argued on behalf of the NCSC that Shahid Akhter acted unreasonably in bringing the proceedings because
(a) as the President found, his grounds of appeal failed to address the breaches cited in the Notice of Cancellation and failed to state a substantive case;
(b) the only point made by him in his purported grounds of appeal was that Woodbine Villa was not financially viable;
(c) the purported grounds of appeal contained little more than a series of unfounded and irrelevant comments and allegations about the conduct of the Respondent's inspectors, their predecessors and others; and
(d) notices of appeal which contain no valid grounds are, ipso facto, unreasonable.

56. It was further argued on behalf of the NCSC that Shahid Akhter acted unreasonably in conducting the proceedings because extensive, if not excessive, latitude had had to be granted to him to enable him to present his case in writing and that case, when finally presented, amounted to nothing. Furthermore, Shahid Akhter failed to attend the hearing of the Respondent's application to strike out his appeal despite proper service.

57. Shahid Akhter argued that he did not act unreasonably in bringing the proceedings because he had a good case which should not have been struck out by the President and which should have been re-instated either by him or, later, by the Chairman, after he had written to the Tribunal on 26th April 2003.

58. Shahid Akhter argued further that he did not act unreasonably in conducting the proceedings because
(a) having spent over £15,000 on solicitors in 2001-2 and having achieved almost nothing to preserve his business by that expenditure, he could not afford to consult lawyers for advice on the presentation of his case on this occasion;
(b) although his grounds of appeal lacked the clarity that would have been achieved by someone more accustomed to presenting a case in writing, his reasons for appealing were contained in the documents he submitted on 15th December 2002;
(c) he was not properly informed of the date of the preliminary hearing before the President;
(d) had he been so informed he would have attended the hearing and would have persuaded the President not to strike out his appeal;
(e) he reasonably expected that directions would be given at the preliminary hearing in relation to the further conduct of the case; and
(f) he would have complied with those directions and would have produced all of the evidence necessary to show that the Inspectors had acted improperly and had imposed conditions that were wholly unnecessary and irrelevant, having regard to the fact that, as they knew and accepted, the home was in the process of being closed down.

Conclusions and reasons

59. The Tribunal was not satisfied that Shahid Akhter acted unreasonably in bringing the proceedings.

60. Following his meeting with the Inspectors on 25th July 2002, Shahid Akhter had reason to believe that the NCSC would accept a voluntary cancellation of the registration. If he had been properly advised, he might have lodged an appeal against the decision of the NCSC communicated to him on 5th August 2002 not to accept his application for voluntary cancellation of the registration because of the lack of compliance with requirements imposed following earlier inspections of the premises. The outcome of such an appeal would have been doubtful but the appeal would not have been misconceived.

61. Shahid Akhter was not informed of his right to appeal to the Tribunal against this first decision of the NCSC and it is therefore not surprising that he failed to lodge an appeal within the time permitted by the statute. It is equally unsurprising that, when specifically informed by Mr Fraher of his right to appeal to the Tribunal, Shahid Akhter sought to exercise that right. He felt a sense of grievance which he firmly and sincerely believed was justified. He also found it difficult to understand why he should not be permitted to cancel his registration voluntarily and why he should be required to maintain staffing levels which would have been appropriate if the home were fully occupied but were not appropriate when the home was, in fact, being closed down. He also sincerely believed that he would be able to explain that any failures in relation to the administration of medication and to other matters affecting the health and safety of residents were temporary and had been rectified and that the alleged lack of qualifications and skills of the staff were irrelevant since their services would only be required until the imminent closure of the home.

62. The Tribunal doubted whether any of the points that Shahid Akhter wished to make and/or tried to make would have had any real prospect of success but was unable to say that, in endeavouring to lodge and substantiate an appeal, he was acting unreasonably.

63. The fact that Shahid Akhter sought to initiate an appeal by writing to the NCSC rather than to the Tribunal was less easy to understand. However, having regard to the novelty of the procedure and the lack of professional advice, this could not properly be said to be unreasonable.

64. Shahid Akhter clearly needed advice and assistance from a competent lawyer. His decision not to seek such advice and assistance was unwise and unfortunate but, in the light of his earlier experiences, not unreasonable.

65. The Tribunal was similarly not satisfied that Shahid Akhter acted unreasonably in conducting the proceedings. His performance after the Tribunal had acknowledged and registered his appeal in November 2002 was not impressive. He delayed and only lodged his purported grounds of appeal in response to an "unless order". However, at the relevant time, he had many problems, arising out of the failure of the business, with which to contend and he was obliged frequently to travel abroad in his attempts to generate an income to support himself and his family and to pay his debts.

66. The Form B1 lodged by Shahid Akhter was as confusing as it was ineffective. However, having heard his oral explanations, the Tribunal was able to discern that the points that he wished to put forward in support of his appeal (referred to in paragraphs 58 and 64 above) were contained in the narrative that he set out and in the supporting documents, though heavily obscured by much irrelevant material. That narrative lacked coherence and contained many intemperate and abusive allegations and comments but there were references, albeit oblique, to the alleged breaches of standards and to the arguments that Shahid Akhter proposed to marshal in answer to the case against him. The Tribunal was therefore able to accept that the submission made on 15th December 2002 was intended to convey appropriate "background information" and that Shahid Akhter would have dealt more directly with the case against him, and the case that he wished to advance, in the further documents that he believed he would be directed to file when he attended the preliminary hearing. In these circumstances, the presentation of the Form B1, though misguided and unhelpful, fell just short of being unreasonable.

67. Shahid Akhter's failure to attend the preliminary hearing arose out of his own fault but it was not unreasonable. Having supplied an e mail address for the use of the Tribunal staff and being aware that the Tribunal would be arranging a preliminary hearing (not least because he had asked for that to be done), he should have made arrangements for communications sent to him at that address to be monitored and passed on to him if he were abroad or otherwise unable to give them his immediate attention. However, the use of electronic communication in legal proceedings is a novelty and, as the President noted in his order dated 14th July 2003, it is regrettable that the e mail was not followed up by a letter.

68. The communications sent to the Tribunal after the hearing on 13th March were irritatingly misconceived but they had no bearing on the issue of whether a costs order should be made since the proceedings were effectively at an end by the time that they were sent.

69. The Tribunal was satisfied, having heard the oral evidence of Shahid Akhter, that, despite many appearances to the contrary, he was not deliberately prevaricating or seeking to be difficult but genuinely did not understand or appreciate what was required of him.

70. Even if it had been satisfied that Shahid Akhter had acted unreasonably in bringing or conducting the proceedings, the Tribunal would not have made a costs order against him because he is manifestly insolvent and therefore unable to comply with an order requiring him to pay £3,615.50 or any sum towards the costs incurred by the NCSC. The Tribunal had no direct evidence as to the means of Tanveer Salam but had no reason to suppose that he is any less insolvent than his former partner.

71. Accordingly, the Tribunal decided to make no costs order.

72. The decision of the Tribunal was unanimous.

Order

The appeal of Shahid Akhter and Tanveer Salam, trading in partnership as Woodbine Villa, having been struck out, there shall be no costs order.

Signed: 27th October 2003
John Reddish (Chairman)
Susan Gilhespie
Wendy Stafford
27th October 2003