England and Wales Care Standards Tribunal

L

-and-

THE SECRETARY OF STATE [COSTS]

[2005] 547 PVA

[2005] 548 PC

Before Mr. I Robertson (Nominated Chairman)

1. This matter relates to an appeal brought by Mr L on 10 June 2005 against decisions made by the Secretary of State and confirmed on the same date, to place his name on both the Protection of Children and Protection of Vulnerable Adults lists. He was represented by solicitors.
2. I have not had sight of the papers that were presented to the Secretary of State and upon which representations were made prior to this decision being made but it appears that a number of allegations gave rise to conclusion.
3. Mr L attached to his Notice of Appeal a 14 page statement which he had clearly prepared himself together with various attachments. The matter was listed for a 4 day hearing commencing 13 February 2006. On 28 October his solicitors filed a Further Information Form seeking the attendance of 7 witnesses at the hearing of the Appeal, asking that a number of documents be excluded on the ground that they were not relevant to the allegations against him and asking for further documentation to be provided. On 7 November the Secretary of State filed their Further Information Form detailing 4 witnesses they intended to call and served these witness statements on 21 December. Solicitors for Mr L served 2 Witness statements on 16 January 2006 one from Mr L and one from his partner.
4. On 27 January 2006 the Secretary of State wrote in the following terms.

"I write to inform you that my client and (sic) decided to withdraw its opposition to this appeal"

5. The President accordingly on 27 January 2006 formally allowed the Appeal and Ordered the Appellant to notify the Tribunal within 10 working days if he was seeking an Order for costs, if so they were to address why the Respondent has acted unreasonably in conducting these proceedings and provide a Schedule of Costs..
6. On 3 February 2006, solicitors acting for Mr L sent a letter in the following terms;

"We write with reference to the Order of the Tribunal dated 27 January 2006.

We wish to seek an Order for costs against the Respondent. We consider that the Respondent acted unreasonably initially in putting Mr L's name on the POVA list and the POCA list. Thereafter, the Respondent defended the Appellant's appeal against inclusion on these lists and the information available to the Respondent has not changed throughout the course of these proceedings. It has taken the Respondent until now, some 2 weeks prior to the Hearing which was listed for a period of 4 days to withdraw its objection to Mr L's Appeal. We therefore seek an Order for costs against the Respondent in this matter and in this regard enclose a Schedule of Costs.

We therefore await hearing from the Tribunal"

7. The Schedule of Costs is broken down into an hourly rate of £145 with letters and telephone calls at 1/10^th and letters in at 1/20^th. These do not appear unreasonable per se but I am concerned that the schedule does not specify the level of fee earner with conduct of the case. In total 20 Hours 24 minutes is claimed in preparation time with telephone calls and letters itemised leading to solicitors profits costs of £3799 plus VAT £664.83 with a sub total of £4463.83 Counsels fees for advice were £825 plus VAT £144.38 at an hourly rate of £150.
8. The Secretary of State responded on 7 February in the following terms;

"Judge Pearl's Order specifically directed the appellant to address the question of whether the Respondent had acted unreasonably in conducting these proceedings. Despite that, no such submissions have been made by [appellants solicitors] (who have simply served a Schedule of costs). The Respondent therefore submits that in accordance with the terms of the Order, the Tribunal should make no order as to costs.

Without prejudice to that, the Respondent wishes to make the following points: -

The jurisdiction of the tribunal to award costs is governed by regulation 24(1). Costs can be awarded when the Tribunal considers that a party has acted unreasonably in bringing or conducting proceedings.

The Respondent submits that the case law shows that the test is a high one. In Woodbine Villa v NCSC [2002], the tribunal defined "unreasonable" as "not to have acted in accordance with reason or good sense." In Agarwal v CHAI [2003] 208 EA, the tribunal said that there was an initial presumption of "no order as to costs" that the burden rests with the party making the application for costs and that the standard of proof is a high one.

The Respondent submits that she has acted wholly reasonably in the decision to place the Appellant on the lists, in her subsequent handling of the appeal and in her decision to withdraw opposition to the appeal. The evidence with the referral was such that it was a rational and sensible decision to, firstly, provisionally list the appellant and then subsequently to confirm the listing. During the conduct of the appeal itself, documents had to be gathered and witnesses seen and proofs taken. Despite the fact that statements were to be served before Christmas (a timetable with which the Respondent complied), the Appellant's statements were not received until late afternoon on 16th January (and in fact were not seen by me until the 17^th January). The Respondent withdrew opposition to the appeal the following week, on 26^th January. It is respectfully submitted that the Respondent needed that short intervening period of time to carefully consider the Appellant's lengthy statements, discuss the matters raised therein with Counsel and colleagues and send the statements to its own witnesses with a view to supplementary statements being served (as provided for by the directions). It was once the Appellant's evidence had been analysed that the decision was taken, and communicated the very same day, to withdraw. The Respondent's conduct was wholly proper and saved time and money for both parties and for the tribunal.

The Respondent submits that the question of costs is suitable for determination on the papers."

9. I have considerable sympathy with this position. The letter from the Appellant's solicitors does not address the issues that they were specifically asked to address. They have not turned their mind to the growing body of decisions in this jurisdiction as to costs and seem to have treated the question of costs as being a formality. Costs do not follow the event in this jurisdiction and it is for the Appellant to justify the bald statement that the proceedings have been brought or conducted unreasonably. Cases will frequently take a different form during the course of litigation and require review. I note that the Appellant did not comply with timetabling directions with regard to filing his evidence and that if he had done so no doubt the Secretary of State could have reviewed her position earlier.
10. In the absence of properly formulated reasons therefore I dismiss the Appellant's claim for costs and Order that there be no Order for costs.
11. One final point causes me some concern. I cannot tell on the papers what the Appellant's means are and it may be that he falls outside scope for Public Funding. His solicitors however have a duty to inform him that Public Funding is available (subject to means and merits) in this specific jurisdiction and give him the opportunity to apply or go elsewhere if they do not have a contract with the Legal Services Commission.
12. I attach details available on the CST website which clarifies the Public Funding situation;

With effect from 29 October 2005, public funding is available for certain individuals who wish to appeal to the Care Standards Tribunal. The Legal Services Commission is now authorised to fund legal help, help at Court and legal representation in relation to:

Proceedings under section 4 of the Protection of Children Act 1999 (appeals against inclusion on the list of individuals considered unsuitable to work with children);

Proceedings under section 4A of the Protection of Children Act 1999 (applications for removal from the list of individuals considered unsuitable to work with children);

Proceedings under section 86 of the Care Standards Act 2000 (appeals against inclusion on the list of individuals considered unsuitable to work with vulnerable adults) and;

Proceedings under section 87 of the Care Standards Act 2000 (applications for removal from the list of individuals considered unsuitable to work with vulnerable adults).

13. If an Appellant seeks costs in similar circumstances in the future on a private client basis I would expect to see evidence that the client had been advised about the availability of Public Funding together with good reasons for his not making any such application or being refused. There is nothing of course precluding a Publicly Funded Appellant seeking costs, indeed there is a duty to the Fund to do so in appropriate cases but it may be that the scales and rates claimed will be very much different.

NO ORDER AS TO COSTS

I.M.ROBERTSON

Nominated Chairman

27^th February 2006