England and Wales Care Standards Tribunal

Bromfield-Rabley v Secretary of StateoFor Education and Skills [2004] EWCST 324(PC)(2) (17 November 2004)

DECISION

IN THE CARE STANDARDS TRIBUNAL

BETWEEN:

ARLENE ALTHEA BROMFIELD-RABLEY v THE SECRETARY OF STATE FOR EDUCATION AND SKILLS [2004] 324.PC COSTS
1. On 20 September 2004 I gave my decision on this appeal and refused it effectively for want of prosecution. I made various comments regarding costs and gave directions upon the Secretary of States application for the costs of the abortive hearing. The secretary of state filed a Schedule of costs with the Tribunal on 23 September. The total claim for costs was £695.55. This claim was broken down by time and fee earner appropriately and in accordance with guidance given in the Coventry Homes case.
2. On 27 September the President made the following direction;

"The Appellant is now asked to deal with paragraph 2 of the directions of Mr Robertson within 14 days of receiving this Order. In particular, and given that the Appellant was not represented at the hearing on Reconsideration of Refusal of Leave, the Appellant is asked to consider the question of the power of the Tribunal to award costs in a Reconsideration of Refusal of Leave application."

No response has been received to that direction. A further reminder letter dated 25 October to those who previously acted for the Appellant has also gone unanswered.

3. The power to award costs is contained in Regulation 24 Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002.;

(1) Subject to Regulation 31 and to 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 the party (the "paying party") to make payment to the other party ("the receiving party") to cover costs incurred by the receiving party.

(2) Before making a costs order against a party, the Tribunal must-

a) invite the receiving party to provide to the Tribunal a schedule of costs incurred by him in respect of the proceedings; and

b) 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 relevant written information he has provided"

The Tribunal then has power to make an appropriate costs order taking account such matter.

4. The process for the tribunal is as follows;

i) Has the party acted unreasonably in bringing or conducting proceedings

ii) If so, the receiving party shall file a schedule of costs

iii) that schedule shall be served upon the paying party and s/he shall be invited to make representations (about whether an order should be made at all, the reasonableness of the costs sought as a whole or regarding individual items and the paying parties ability to pay including documentary evidence)

iv) the tribunal considers the schedule of costs sought and makes such award, if any, as is reasonable in the light of the case, the individual items of costs sought, the representations of the paying party and the financial circumstances of the paying party.

This is a reasonably sophisticated process and it follows that a major element of the exercise is dependant upon the paying party engaging in that process. It is after all in their interests to so engage otherwise the Tribunal is limited in its ability to consider matters in a manner favourable to the paying party.

5. I consider for the reasons already given that the Respondent acted unreasonably in bringing these proceedings and then failing to prosecute them. I have received no representations from the Appellant and therefore have to consider the costs without any assistance from her. Having considered the Schedule I consider that the time spent and the hourly rates charged are entirely reasonable and that counsels fees are again reasonable. The only question left is therefore consideration of the Appellants ability to pay. The Appellant chose to engage in this Appeal. She put the Secretary of State to expense by failing to engage in the process and the onus is therefore squarely upon her to justify to the Tribunal why she should not pay the Secretary of States reasonable costs. It is not for the Tribunal to consider the papers already served and make decisions regarding ability to pay upon those papers in the absence of representations. It is all too easy to fall into the trap of accepting at face value untested and unsubstantiated claims of debts and lack of income filed as part of the substantive case. Unless such claims have been tested and findings made they should, in the absence of representations as to costs be disregarded by the Tribunal, save in those very few cases where the size of costs claim is patently and obviously disproportionate to the circumstances of the paying party. I would consider that such cases would be rare and exceptional.
6. In the absence of representations I do not feel in a position to make any findings that the Appellant is unable to meet the claim.
7. Accordingly I award the Secretary of State costs in the sum of £695.55

Ian Robertson

Chairman

17 November 2004