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England and Wales Care Standards Tribunal

You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Coventry Homes (MHC) Ltd v National Care Standards Commission [2002] EWCST 17(NC) (13 June 2003)
URL: http://www.bailii.org/ew/cases/EWCST/2003/17(NC).html
Cite as: [2002] EWCST 17(NC)
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Coventry Homes (MHC) Ltd v National Care Standards Commission [2002] EWCST 17(NC) (13 June 2003)

Appeal No 2002.17.NC
BETWEEN:
COVENTRY HOMES (MHC) LIMITED Applicants
-and-
THE NATIONAL CARE STANDARDS COMMISSION Respondent
On 5 June 2003 sitting at The Care standards Tribunal hearing centre, 18 Pocock Street, London
BEFORE
Mr I Robertson
REPRESENTATION
Mr A Maclean (counsel) instructed by DLA for Coventry Homes
Mr Grant (solicitor) of Bevan Ashford for the NCSC

THE APPLICATION

  1. This is an application by the National Care Standards Commission (NCSC) under Regulation 33(1) Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (Tribunal Regulations) for a Costs Order against the Applicants, Coventry Homes, they having withdrawn their application originally lodged in 2002.

  2. Regulation 33(1) states as follows;

    3. "If the Applicant at any time notifies the secretary in writing, or states at a hearing, that he no longer wishes to pursue the proceedings, the president or nominated chairman (or at the hearing The Tribunal) must dismiss the proceedings, and may, subject to regulation 24(4) and (3) make a costs Order"

  3. Regulations 24(2) and (3) state as follows;

    24(1) "Before making a costs order against a party, the Tribunal must –

    1. invite the receiving party to provide to the Tribunal a schedule of costs incurred by him in respect of the proceedings; and
    2. invite representations from the paying party and consider any representations he makes, consider whether he is able to comply with such an order and consider any written information which he has provided

    24(2) "When making a costs order, the Tribunal must-

    1. order the payment of any sum which the parties have agreed should be paid;
    2. order the payment of any sum which it considers appropriate having considered any representations the parties may make;or
    3. order the payment of the whole or part of the costs incurred by the receiving party in connection with the proceedings as assessed

  4. Also of relevance is Regulation 24(1) which states as follows:

    5. "Subject to regulation 31 and paragraph 2 below, 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 (2the paying party") to make a payment to the other party ("the receiving party") to cover costs incurred by the receiving party"

  5. In the instant case I received written submissions from the NCSC together with a Schedule of costs incurred. I received a set of written responses from Coventry Homes and heard oral submissions from the solicitor for the NCSC and counsel for Coventry Homes.

    6. THE BACKGROUND

  6. The background to this matter is set out in detail in a decision made by me on 6 December 2002 (reported on the CST website at [2002].17.NC) and I do not propose to repeat it here. Suffice it to say that the case centred around whether the character of a number of Care Homes had changed such that following automatic transfer of their registration under the transitional provisions, they remained Care Homes capable of Registration. The decision reported above related to a Strike Out application by the NCSC which I rejected. Accordingly I held a directions hearing on 8 January 2003 to set down a timetable to bring this matter to hearing.

  7. Both parties were represented at that directions hearing. The general shape of the final hearing was discussed. It became clear that the issue would be whether following inspection the NCSC still considered the homes to be Care Homes. Their representative gave a time estimate of 5 days for a hearing, the representative of Coventry Homes gave an estimate of 3 days. Erring on the side of caution I set the matter down for 5 days commencing 12 May 2003. I then gave directions to timetable the matter to the final hearing including amongst others the applicant to file statements by 3 February, the NCSC to file any questions arising from that by 17 February with the applicants responding by 3 March, NCSC to file their evidence by 14 April and the applicants responding further if advised by 28 April.

  8. On 16 January 2003 the Applicants solicitors wrote to the NCSC solicitors asking them to clarify their case. There then followed extensive correspondence all of which was copied to the tribunal. It appears to me having considered the correspondence that the applicants solicitors had either misunderstood what was agreed at the directions hearing or having considered its implications began to realise the ramifications for them of a final hearing in which all homes were to be examined. On 17 February the NCSC raised a number of questions as per the directions. On 28 February the applicants solicitors wrote to the NCSC solicitors saying that they would not answer the questions as the NCSC had apparently not set out their case. On 5 March I issued an "unless" order in the following terms;

    9. "The purpose of the new regime of rules is to ensure proper management of cases by the Tribunal. It is for the Tribunal to set a timetable in consultation with the parties and for the Tribunal to sanction any variation from this timetable.

    Those representing Coventry Homes have chosen to raise new issues not canvassed at the directions hearing with the NCSC and to unilaterally ignore the directions made without returning the matter to the Tribunal. It is for them to set out the evidential basis of their application and for the NCSC to respond.

    Accordingly under the powers given to me by Rule 10 make the following Order;

    1. UNLESS Coventry Homes do file all evidence relied upon in support of their appeal and respond to the questions raised by the NCSC by their letter dated 17 February 2003 by 4.00pm on Friday 14 March 2003 their application shall be deemed to be dismissed.

    2. If the application is dismissed in accordance with Order 1 above the NCSC shall serve upon the Tribunal and Coventry Homes a Schedule setting out details of all costs incurred by them in respect of the proceedings by 28 March 2003

    3. Coventry Homes shall serve upon the Tribunal and the NCSC details of any representations it wishes to make against the making of a costs order by 11 April 2003

  9. On 17 March the solicitors for the applicants formally withdrew their appeal.

    10. THE SUBMISSIONS

  10. The initial issue to consider at the Costs hearing was the basis upon which I was to exercise my discretion under Regulation 33. Mr Grant urged upon me a costs follow the event approach, namely that the president, nominated Chairman or Tribunal upon a dismissal should award costs in all but exceptional cases. Mr McLean urged upon me the approach adopted by the president in the case of Funcamps v OFSTED [2003]124 EY namely to apply the criteria set out in Regulation 24(1) above. In the Funcamps case both parties agreed to this approach so the issue of its applicability was not canvassed. Mr Grant submitted that the fact that Regulation 33 does not refer to Regulation 24(1) means that it is not applicable in such cases. I cannot accept this approach. If taken to its logical conclusion the power to award costs would be greater on dismissal cases than on cases that go to hearing and are ultimately litigated at great expense. This cannot be right. I respectfully adopt the approach of the president in the Funcamps case and agree with his analysis of the costs regime that applies. In exercising my discretion in this case therefore, I have to have regard to the reasonableness of the conduct of the proceedings, including the decision to commence the proceedings.

    11. THE DECISION

  11. At the hearing on 6 December I had been critical of the manner in which both parties had prepared the case to date, particularly the applicants at paragraph 11 I stated as follows;

    ". There are a number of unsatisfactory aspects to procedural issues in this case, which I have taken a reasonably lenient view on given the newness of the regime with which we are all now working. In future however I, and other Chairmen no doubt, will expect all appeals to be commenced through the use of the appropriate forms. Where the grounds of appeal change during the course of an appeal application will need to be made to seek the leave of the Chairman under Rule 32 to change them. The new grounds of Appeal will be set out in one concise document. Failure to seek such leave may lead to appeals being dismissed or costs sanctions imposed. It will be expected that both parties will agree paginated bundles well in advance of the hearing and in a complex case such as this to file skeleton arguments at least a week before the hearing. Furthermore if counsel is to be instructed they should be so instructed well in advance of the hearing and provided with all papers in good time to comply with directions given."

  12. I considered the costs issue at that stage but as can be seen took a lenient view. I do not think it would be proper to revisit that view at this stage. In any event most of the costs incurred to that date were a direct result of the NCSC strike out application which they in fact lost. I have therefore disregarded all costs incurred prior to the 6 December 2002.


  13. All parties were properly prepared for the hearing on 8 January. The hearing was productive and I considered that the case was on course for a final determination. The correspondence thereafter clearly demonstrates that the appellants were not going to allow the case to progress to the type of hearing clearly envisaged at the directions hearing. At no stage did they refer the matter formally to the Tribunal but instead attempted to litigate by correspondence. I deprecate that approach. Correspondence between the parties should remain between the parties and should not be copied to the Tribunal chair in the hope that it will somehow influence him or her. There are clear rules of procedure and in this case I gave liberty to apply to the tribunal regarding matters arising particularly with regard to the time estimate. I even had to issue an "unless" order because of failure to comply with directions.

  14. It appears to me that from 8 January 2003 the applicants had no intention of progressing the matter to hearing. I consider that they conducted themselves unreasonably from this point and I propose to award the NCSC their costs from this date up to but not including the costs hearing.

  15. The difficulty I have is that the Schedule produced by the NCSC is very short of details. It gives global figures broken down by Partner and Assistant solicitor times and counsels fees. It is not broken down in any greater detail. I allowed Mr Grant a short adjournment to contact his office to see if they were able to break the figures down more. He was not able to give detail but estimated these costs as being in the region of £2000 or up to £4000 to include the costs hearing.

  16. It is hard to be critical where no guidance has been given as to what a costs schedule should contain but it may be that if the schedule had been broken down in greater detail and by activity that some discussion could have taken place between the parties to see if agreement could be reached to avoid the need for a hearing. As it stood the applicants were faced with a costs claim running into 5 figures they had no choice but to contest this and have been successful, at least in part. I do not feel it appropriate therefore to award the costs of this hearing.

  17. In future cases Chairmen will be greatly assisted by a Schedule showing what activities have been undertaken by which personnel, broken down into the various stages of the proceedings for example; interlocutory preparation, attendance at directions hearing, preparation for final hearing etc. In this way those challenging an order can do so by reference to specific sums at different stages of the proceedings

    18. THE ORDER

  18. Having considered the matter at some length I have decided to apply my discretion under Reg 24(3)(b). I consider in the absence of greater detail, and taking into account the applicants status and ability to pay the costs, that the sum of £1500 is reasonable in the circumstances. This sum is exclusive of VAT which is payable in addition.

Dated 13 June 2003

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