England and Wales Care Standards Tribunal

 
Alan Hawkes v Secretary of State [Costs] [2003] 243. PC -Before- His Honour Judge David Pearl (President) DECISION ON COSTS

Background.

1. On 28^th November 2002, the Department of Health (the Government Department then responsible) wrote to the Applicant stating that his name had been provisionally placed on the statutory list of those unsuitable to work with children (the POCA list). On 22^nd August 2003, the Applicant was informed by letter that his name had been confirmed on the list.
2. The applicant appealed out of time, and the Respondent sought to strike out the appeal for that reason. After an oral hearing on that application, I decided against the Respondent and exercised my discretion under Regulation 35 to allow the case to proceed
3. I issued Directions dated 25^th March 2004 timetabling the case, and the case was set down for a substantive hearing commencing on 2^nd August 2004 with a time estimate of four days.
4. On the 6^th April 2004, the Respondent wrote to inform the Tribunal that, after a careful review, the Secretary of State had decided not to oppose the appeal.
5. Accordingly, on 16^th April 2004 I allowed the appeal in accordance with Regulation 33(2).

Pleadings regarding Costs

6. I directed on 16^th April 2004 the Applicant to inform the Tribunal within 10 working days of that date whether he wished to seek an Order for Costs.
7. A letter was received from Follett Stock, Solicitors for the Applicant, dated 29^th April 2004 received by the Tribunal on the 4^th May 2004 providing a Schedule of Costs amounting to £6,672.91p and reasons why the Applicant considered that the Respondent had acted unreasonably in conducting these proceedings.
8. By Order dated 18^th May 2004, His Honour Judge Swift, in accordance with Regulation 24(3), invited representations from the Respondent.
9. A reply was received by the Respondent by letter dated 28^th May 2004 received on 4^th June 2004.
10. By Order dated 15^th June 2004, I directed that the Applicant respond to the letter from the Respondent within ten working days from the receipt of the Order.
11. Both parties were asked to consider whether they would wish to make oral representations on the matter, or whether they are content for the matter to be dealt with on the basis of the papers.
12. Follett Stock, Solicitors for the Applicant replied by letter dated 18^th June 2004 received on 22^nd June 2004 to the Order dated 15^th June 2004.
13. Both parties are content that the matter be dealt with on the basis of the papers before me. Accordingly, I take into account the following letters:

(i) Letter from Follett Stock dated 29^th April 2004.

(ii) Letter from the Protection of Children Act list dated 28^th May 2004.

(iii) Letter from Follett Stock dated 18^th June 2004.

The Law

14. Costs applications in a case where the Respondent notifies the Secretary in writing that he does not oppose or no longer opposes the appeal is governed by Regulation 33(2) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations. This states that (b) subject to Regulation 24(2) and (3) the President may make a costs order; and (c) must consider making one.
15. Regulation 24(2) has been complied with in this case. The Applicant has been invited to provide the Tribunal with a Schedule of Costs incurred by him in respect of the proceedings, and the paying party has been invited to make representations.
16. Regulation 24(3) states that when making a costs order, the Tribunal must (a) order the payment of any sum which the parties have agreed should be paid [There has been no agreement in this case] (b) order the payment of any sum which it considers appropriate having considered any representations the parties may make; or (c) order the payment of the whole or part of the costs incurred by the receiving party in connection with the proceedings as assessed.
17. The Respondent in this case states that if I am minded to exercise my discretion and make an order for costs then, failing agreement, the costs should be assessed. The Applicant asks that the costs should be determined by the President rather than go through the lengthy process of assessment. I have decided that whereas there may be cases where it would be more appropriate for there to be an assessment of costs by a District Judge, in a matter such as this one, where there was no hearing, the principle of proportionality favours an assessment (if necessary) by the President or the Nominated Chairman.
18. Regulation 33 makes no reference to Regulation 24(1) that establishes the general principle that if in the opinion of the Tribunal a party has acted unreasonably in bringing or conducting the proceedings, it may make an order requiring that party to make a payment to the other party to cover costs incurred by the receiving party. This would seem to have been an oversight, and will be remedied as a result of an amendment to the Regulations that is likely to be brought into force within the next few months. In the meantime, it has been the practice of the Tribunal to apply Regulation 24(1) to cases where the appeal has been withdrawn or where the Respondent lifts his opposition to the appeal.
19. The test is a high one (Dr R.A. Fairburn v NCSC [2002] 76 NC) and there is a presumption in favour of No Order as to Costs (Walkes v OFSTED [2003] 212 EYSUS). However it was stated in Woodbine Villa v NCSC [2002] 116.NC that costs orders are more likely to be made in this Tribunal than in many other Tribunals where the regulations are more restrictive. The Tribunal in that case said that whereas a party to an appeal for example to 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."
20. Conduct prior to the initiation of the proceedings can be relevant (Fun Camps Ltd v OFSTED [2003] 124.EY) in considering reasonableness.

This case

21. The Respondent submits that the making of a costs order in this matter would be inappropriate. He says that as Mr Hawkes' appeal was lodged with the Tribunal outside the three month time limit, it was decided to apply to strike out the appeal on that basis. It is said that this is a course of action that the Secretary of State was fully entitled to take and "it is respectfully submitted that he cannot be criticised for doing so." It is said that following the dismissal of the application to strike out, the Respondent carried out a full consideration of the merits of the appeal and withdrew his opposition as he was of the opinion that he would not be able to satisfy the Tribunal on the balance of probabilities that the necessary criteria were satisfied. The Respondent submits that this course of action was not unreasonable and that he withdrew his opposition to the appeal before any further action had been taken by the parties, for example, the drafting of witness statements. He submits that he has acted reasonably throughout.
22. The applicant, in the letter dated 29^th April 2004, would appear to accept that the practice of the Respondent (where an appeal on the face of it has been put in late) to apply to strike out that appeal without considering the merits of the appeal itself "seems to be a wholly sensible course of action as far as the Department is concerned". However, the Applicant's solicitors also says "but as far as our client (and people like him) are concerned it of course leads to the expense of having to attend the strike out hearing in circumstances where (quite clearly) had the Department taken a relevantly (sic) short time to actually look at the merits of the appeal, it would have concluded that the grounds for our client being listed [on the POCA list] were unsafe, and consequently, by relying on a technicality the Department may have played its part in allowing an injustice to proceed…We take the view that the Department has acted in a unsatisfactory manner which may have saved its costs but has incurred costs for our client in circumstances where those costs should not have been incurred."
23. The issue that I have to decide on is whether the Respondent's approach in this case, namely to seek to strike out the appeal and to defer a consideration on the merits, was unreasonable. Costs are available only in a case where the conduct is unreasonable. There may well be cases where it would be prudent for the Respondent in this type of situation to give preliminary consideration to the merits of the case prior to any decision by the Tribunal on an application to strike out the appeal. But it is a big jump from this view of the practice of the Respondent to saying that failure to give an early consideration to the merits amounts to labelling such failure as "acting unreasonably in bringing or conducting the proceedings".
24. There is a procedure for seeking a strike out of an appeal, and invoking such a procedure is, as the Applicant's solicitor accepts, "a wholly sensible course of action" so far as the Department is concerned. Having failed to persuade me to strike out the appeal, the Respondent then carried out a merits review, and within a very short period of time, withdrew its opposition.
25. I have decided that in this case, the Respondent did not act unreasonably in conducting the proceedings, and accordingly I make NO ORDER FOR COSTS.

His Honour Judge David Pearl

President

23^rd June 2004.