England and Wales Care Standards Tribunal

Jones v The Secretary of State [2006] EWCST 668(PVA) (13 April 2007)

Sarah Jones -v- The Secretary of State [Decision on Costs]
[2006] 668.PVA [2006] 669.PC
DECISION ON COSTS
1. On 1^st March 2007, the appeals from the decisions of the Secretary of State dated 17^th January 2006 to confirm the Appellant's name on the PoVA and the PoCA lists were allowed, because by letter dated 28^th February 2007, the Respondent wrote to the Tribunal notifying it that she no longer wished to pursue the proceedings.
2. There then followed an application for costs by Wace Morgan, Solicitors acting on behalf of the Appellant by letter dated 12^th March 2007, for the sum of £2714.25p.
3. The letter was sent to the Respondent for her response. The Response, dated 26^th March 2007, drafted by Mr J Moffett of Counsel sets out a detailed response to the application for costs.
4. The Appellant was provisionally listed as long ago as 9^th August 2004. She was confirmed on both lists on 17^th January 2006. Between those dates it would appear that proceedings were instituted in the Employment Tribunal.
5. A Directions Hearing was held by me on 6^th June 2006 when the Appellant applied for these proceedings to be stayed pending the outcome of her appeal from the ET to the Employment Appeal Tribunal. The proceedings were stayed for that reason.
6. It would appear that Mr Simon Oliver, as a Nominated Chairman, stayed the proceedings on 21^st August 2006 for the additional reason that the proceedings in the case of Wright v Secretary of State were being pursued in the courts, and that the judgement in that may have an impact on the factual situation in this matter.
7. There was a further Directions hearing on 15^th February 2007 before me, when I was informed of the status of the proceedings before the Employment Tribunal. Neither party wished to continue the stay of proceedings to await the Court of Appeal judgement in Wright v Secretary of State. It was agreed, however, on the Appellant's application, that the appeals in this matter be stayed until the conclusion of the proceedings before the Employment Tribunal, with liberty to the Respondent to apply for a variation of the Order within fourteen days of the date of the Order.
8. Mr Moffett, in his Submissions on Costs, helpfully sets out the relevant Regulation (Regulation 24) that must be applied when considering an application for costs, and in paragraph 10 of his Submissions, he sets out the case law from the Tribunal on this matter. He is correct in his submission that the burden is on the Appellant to satisfy the Tribunal that the Secretary of State has acted unreasonably in conducting the proceedings. The test is a high one. Importantly, the focus should be on the conduct of the Secretary of State after the appeal has been lodged and not on the original decision to list the Appellant.
9. It would seem, from the Submissions, that it became apparent, on investigation by the Respondent after the Stay ordered on 15^th February 2007, that important potential witnesses were unwilling to cooperate. It is submitted by Mr Moffett, that having become aware of this unwillingness, The Secretary of State promptly informed the Tribunal of her position.
10. The issue is a narrow one. Can it be said that the Secretary of State should have pursued these investigations in June 2006, after the first Staying Order, rather than in February 2007 after the most recent Staying Order, and that her failure to conduct these investigations amounted to unreasonableness in the conduct of proceedings?
11. Mr Moffett deals with this issue in this way: "In the light of the stay that had been imposed in June 2006, it was entirely reasonable for the Secretary of State not to take further steps to prepare her case for an appeal hearing at that time. The imposition of a stay, by its very nature, indicates that the parties need not take any further steps in the proceedings."
12. What had changed by February 2007, it is submitted, is that although a further stay had been put in place, the period of that stay was likely to be for a relatively short time given that the proceedings before the Employment Tribunals were drawing to a close.
13. It is my finding in this matter that it may have been prudent for the Secretary of State to have obtained the various witness statements required as early as June 2006, in order to ensure that there would be no delay in the appeal being considered by the Tribunal once the stay had been lifted. If difficulties had emerged at that time, opposition could have been withdrawn. The appeal could have been allowed sometime in the summer of 2006 rather than in March 2007. This Appellant has been prohibited from working with vulnerable adults and prohibited from working with children from as long ago as 9^th August 2004.
14. The fact that good practice should have ensured work being done on this case by the Secretary of State during the Summer of 2006, however, does not mean that the failure to conduct this work signifies that she was "unreasonable." This is a very high test, similar to the test that is applied in cost applications in Small Claims Applications in the County Court.
15. I find as a fact that the conduct of the proceedings by the Secretary of State does not amount to "unreasonable conduct" within Regulation 24.
16. Thus, the application by the Appellant for costs in this matter is dismissed.

ACCORDINGLY:

NO ORDER AS TO COSTS.

His Honour Judge David Pearl

President

13^th April 2007.