England and Wales Care Standards Tribunal

AR v Ofsted [2006] EWCST 769(EA) (18 September 2007)

AR (Appellant)
v
Ofsted (Respondent) [2006] 0769.EA
APPLICATION FOR COSTS
Before
Ms Liz Goldthorpe (Nominated Chairman) Ms Maxine Harris Ms Linda Elliott
Hearing 30th August 2007 at the Care Standards Tribunal, London
 

DECISION

Application

An application by the Respondents for a Costs Order against the Appellant, pursuant to Regulation 24 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 ("The Regulations").

The appeal was withdrawn on the second day of the hearing, 23^rd April 2007, and, in consequence, applying Regulation 33 of the 2002 Regulations, the Appellant's appeal was dismissed.


REPRESENTATION

The Respondents were represented by Mr Michael Curtis of Counsel, instructed by Messrs Bevan Brittan. The Appellant was represented at the original appeal hearing by Mr Tudur, an officer of Unison, but was not represented for the purposes of the costs hearing.

BACKGROUND

1. In March 2002 the Appellant was the Acting Manager of 'O' Farm, one of a number of residential units run by 'CT', an independent organisation providing a range of care services for young people. On 17 July 2002, the National Care Standards Commission ('NCSC'), (then the relevant regulatory body) received an application from the Appellant for registration under Part II of the Care Standards Act as the manager of 'O' Farm.
2. During the processing of that application, residents 'S' alleged in 2003 that he had been assaulted by 'T', the deputy manager of 'O' Farm, and that T and the Appellant had used cannabis on the premises. There was a child protection investigation into these allegations but no prosecution. In June 2003, following an internal inquiry by CT, the Appellant was relocated under the supervision of another manager and was subsequently transferred to 'L' Farm where he became the Acting Manager. He failed to inform the NCSC of this change.
3. In January 2004, the NCSC were informed that another resident 'L' had alleged T had assaulted him and that there were concerns about the way in which the Appellant had dealt with L's complaint. A further child protection investigation was carried out. There was no prosecution.
4. On 1^st April 2004 the Commission for Social Care Inspection ('CSCI') took over responsibility for the relevant regulatory functions. In July 2004 CSCI elected to treat the Appellant's application for registration as an application in respect of 'R' Farm. CSCI interviewed past and present staff of 'O' Farm. These staff made allegations about the Appellant and T, including falsification of records by the former, his management style, his failure to supervise staff and substance misuse by him and T. In November 2004 the Appellant accepted he had experienced some difficulties in managing staff in his first managerial role, but denied the remaining allegations.
5. CT suspended the Appellant in February 2005. The local authority commissioned the NSPCC Specialist Investigation Unit to carry out an independent child protection investigation. It carried out subsequent enquiries jointly with CSCI. The NSPCC report in January 2006 raised various concerns about matters at 'O' Farm when the Appellant was the manager.
6. By s 13(2) of the CSA 2000 where an applicant for registration fails to satisfy the regulatory body that the requirements of the Children's Home Regulations 2001 are being and will continue to be complied with, that body has a duty to refuse the application for registration. On 7^th June 2006 CSCI issued a lengthy Notice of Proposal to refuse registration, with a large quantity of supporting evidence. This relied on alleged breaches of the regulations and non-compliance with National Standards in respect of such matters as management skills and supervision of staff, the use of sanctions and physical restraint, and the steps taken in response to the allegation of assault on 'L'. CSCI concluded the Appellant lacked the appropriate fitness, integrity and honesty to justify registration.
7. The Appellant made written representations on 5 July 2006. On 27 July 2006 CSCI issued a Decision refusing his application for registration. On 4 September 2006 the Appellant appealed to the Care Standards Tribunal against the CSCI decision of 27 July 2006 to refuse his application for registration.
8. On 1^st April 2007 Ofsted took over responsibility for the relevant regulatory functions.
9. On 17^th October 2006, following application by solicitors for CSCI, the President directed the Appellant to particularise, prior to the Preliminary Hearing, his response to the Notice of Proposal and indicate which of the breaches of the nine Regulations specified were accepted by him. On 5^th January 2007, the President issued Directions listing the case for hearing commencing on 21^st April with a time estimate of 7 days.

The Appeal Hearing

10. On 21^st May, day one of the hearing listed for seven days, the Appellant's representative indicated to the Tribunal that the Appellant was working for 'PP', a sister company to CT, was no longer managing 'R' Farm and had no intention of becoming the manager of 'R' Farm. The Tribunal confirmed that his appeal was therefore bound to fail because the application for registration was tied to specific premises where he was no longer working. It was made clear on the Appellant's behalf that his intention in pursuing the appeal was to clear his name with respect to allegations he regarded as false and malicious.
11. A number of witnesses then gave evidence on behalf of the Respondents and were cross-examined by the Appellant's representative, an officer of Unison.
12. On 22^nd May the Tribunal was informed that the Appellant could no longer be the manager of 'R' Farm in any event, but had not been aware of the legal consequences of this for his appeal until 21^st May. The Respondents, who were part way through their case, wanted the proceedings to continue in order to ventilate the main allegations so that findings could be made. Mr Curtis stated that the Appellant's employment situation had only become clear on the morning of 21^st May. The Appellant said he regarded continuation of his appeal as pointless since he could not now achieve his stated purpose. He formally withdrew his appeal that afternoon, which was dismissed in accordance with Regulation 33(1). Therefore he did not give evidence.

The Costs Jurisdiction of the Care Standards Tribunal

13. The relevant provisions of the Tribunal Regulations 2002 relating to costs orders for the purposes of this case are contained in Regulations 33 and 24.
14. Regulation 33(1) (as amended by the 2004 Regulations) provides that:
    "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, the nominated chairman (or at the hearing the Tribunal) must dismiss the proceedings and may subject to Regulation 24 make a Costs order."
15. Regulation 24 states:
    "(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 that party (the paying party) to make a 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 the Tribunal with 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 comply with such an order and consider any relevant information he has provided."

18. This therefore means the following procedure must be followed:

i. Once the Applicant withdraws the appeal, the Tribunal must dismiss the appeal and may make an order for costs.

ii. In deciding whether to make a costs order, the Tribunal must:

a. be satisfied that the paying party has acted unreasonably in bringing or conducting the proceedings;

b. invite the receiving party to prepare a schedule of costs; and

c. consider representations from the paying party and

d. consider whether the paying party is able to comply with such an order and

e. consider any relevant information that the paying party has provided.

The Case Law on Costs

19. There have now been a number of previous decisions on costs made in this jurisdiction, in particular the cases of Alan Hawkes -v- Secretary of State [Costs] 2003 243 PC, Dr R A Fairburn (The Old Rectory Nursing Home) -v- N C S C [2002] 76 NC, Bhatnagar V CSCI [2002] 360.EA, Walkes v OFSTED [2003] 212, Agarwal v CHAI [2003] 208.EA, Akhter & Anor (Woodbine Villa) v NCSC (2002) EWCST 116 (NC) 27 October 2003, Fun Camps Limited v OFSTED [2003]124.EY, Ulliott v Secretary of State [Decision on Costs] [2004] 343.PC, Mr and Mrs Gibson -v- The Commission for Social Care Inspection [2004] 265 and 266 EA.
20. These cases as well as the Court of Appeal case of McPherson v BNP Paribas [2004] 3 All ER, provide several guidelines relevant to the facts in this case, namely that:

a. Regulation 24 creates a presumption in favour of no order for costs

b. The test in regulation 24 (1) is a high one and the burden is on the receiving party to satisfy the Tribunal to that standard that the paying party has acted unreasonably in bringing or conducting proceedings. This provision applies in a withdrawal under Regulation 33 as much as it does in a situation where there has been a full merits appeal

c. It is not necessary to show that the conduct of a paying party in proceedings before this Tribunal was "wholly unreasonable", only that the paying party can be shown "not to have acted in accordance with reason or good sense" (the definition of 'unreasonable' from the Shorter Oxford Dictionary)

d. The relevant time for any costs order runs from when the proceedings begin, namely when the appeal is initiated, that is when the Application Form A1 was filed. Therefore the conduct of a party before the institution of proceedings before the Tribunal cannot in itself be treated as an act of unreasonableness in the conduct of those proceedings.

e. The Tribunal are nevertheless entitled to take account of conduct prior to proceedings in determining unreasonableness and is therefore able to look at the whole history of the matter in forming a view on whether the decision to pursue the appeal was unreasonable and whether that party's conduct of the proceedings was unreasonable.

f. The question of whether conduct was reasonable must be a decision made individually in each case, considered on the facts and decided on the circumstances pertaining to that case. The Tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of its discretion as to whether a costs order should be made

g. In judging whether conduct is unreasonable, the Tribunal should "concentrate on what the position was at the time the party made a particular decision which it is alleged now was unreasonable, examine that decision and form a view on whether the paying party, at that time, was conducting the proceedings in an unreasonable manner or not."

h. Where a party withdraws at the earliest available opportunity subsequent to the bulk of evidence being served, this may not be found to be unreasonable

i. Whilst conduct prior to the initiation of the proceedings may be relevant, there is a fundamental difference between cases where findings of fact have been made and those where no findings of fact have been made by the Tribunal, and that if no findings of fact have been made, the Tribunal is unable to deal with allegations that may or may not be true.

j. Litigants in person are not to be judged by the standards of qualified and experienced lawyers. Whilst costs orders are more likely to be made where a party has acted unreasonably in conducting the proceedings, inadequate written or oral presentations of cases by parties acting without the benefit of professional assistance…are unlikely to be characterised as unreasonable.

k. The paying party cannot claim that the unreasonable acts were the responsibility of their legal or other representative who conducted the case on their behalf

l. Costs can only be awarded against a party to the proceedings and the Tribunal has no power to make 'wasted costs' orders against a party's legal advisors

m. Costs can include the costs of the costs application

21. Examples of unreasonable conduct given in the small claims court jurisdiction and cited in some of the above cases have included the making of unnecessary applications, refusing to negotiate, and failing to attend court, as well as persistent failure to comply with directions given by the President or nominated chairman or with "unless orders" made pursuant to Regulation 10 of the 2002 Regulations.

The Respondents' Application for Costs

22. On 22^nd May Mr Curtis requested a preliminary indication from the Tribunal about the merits of a proposed costs application by the Respondents in order to decide whether to incur the expense of a full hearing. Mr Curtis made initial submissions in support of that application.
23. On 23^rd May 2007 the Tribunal considered further oral and written submissions from the Respondents and outline oral and written representations from the Appellant. The parties were subsequently informed the Tribunal had concluded that, in principle, there was sufficient evidence to indicate there was a case to answer, but this of itself could not be taken as any measure of the likely prospects of success of an application for costs since no conclusions in respect of the application had been drawn from any of the evidence presented in the course of the appeal. The parties were given a selection of possible dates for the hearing. On 30^th June the Tribunal issued Directions to the parties in relation to Regulation 24(2) and, in the absence of a proper response about dates, set the matter down for 30^th August 2007. 
24. Both parties filed submissions and the Appellant provided a schedule of his financial circumstances, with some details of his financial standing, but no supporting documentation. The Respondent's schedule of costs was split into four sections representing separate stages of the appeal from the date the start of the proceedings up and including the work done in relation to the costs application. The total sum claimed amounted to £79,649.11.
25. On 1^st August 2007 the Tribunal were informed that the Appellant was no longer legally represented either by Unison or by solicitors. On 20 August 2007 in an email to the Tribunal, the Appellant filed his written representations and a schedule of his income and outgoings confirming that CT had originally continued to pay him at a manager's salary, but this was to now be reduced following the withdrawal of the appeal. He also indicated he wished to have the matter dealt with on paper submissions alone because of the continuing stress the matter had caused to himself and his family.
26. The Appellant responded to a request by solicitors for Ofsted for further information on 24^th August 2007, which included confirmation of his wife's income. She also submitted a statement in support of the Appellant confirming she worked for CT but refusing to supply any further details in relation to her finances.
27. As set out in Mr Curtis' final Skeleton Argument, the application for costs was based on three grounds.

Ground 1

The Appellant's unreasonable delay in withdrawing his appeal

The Respondents argued that the Appellant ought to have abandoned his appeal in its early stages or he ought not to have brought it at all. The Respondents and the Tribunal were not told until the first day that neither the Appellant nor his employers intended him to be the manager of 'R' Farm and were told later that, as Mr Curtis put it, the Appellant "did not want to seek registration of any sort in the future".

The Respondents did not seek to strike out the appeal at that point, being anxious to secure findings in respect of the allegations. Even if the Appellant's reason for withdrawing at this stage were genuine, his conduct was still unreasonable because he ought to have appreciated how the system of registration worked and was represented by a large trade union with access to legal advice: both he and Unison failed to appreciate until the hearing itself that registration is specific to particular premises. This gave rise to a process of reflection that should have occurred much earlier, with the result that the appeal would have been withdrawn.

28. Ground 2

The Appellant's unreasonable failure to inform the Respondent that he no longer planned to be the registered manager of 'R' Farm

The Appellant ought to have told the Respondents this as soon as he knew, which the Respondents believed was before or shortly after the appeal started. This would have enabled a dialogue to confirm the Appellant wished to pursue his appeal nonetheless, and possibly to facilitate the same reflection that would have resulted in withdrawal. The Respondents rejected the suggestion that they should have made the necessary enquiries about his intentions, arguing that pursuit of an appeal implies an intention to take up a post as manager if successful. Furthermore, the documentation before and after commencement of the appeal clearly indicated such an intention or contained no clue to the contrary.

29. Ground 3

The Appellant's unreasonable failure to particularise his case

In essence, the Respondents argued that the Appellant had had four opportunities to set out his case in response to the matters specified in detail in the Notice of Proposal, which included allegations of lying about events at 'O' Farm. His written representations were brief and did not address the factual allegations, his Reasons for Appeal not only failed to address the substantive issues but were also misconceived, being based upon complaints of procedural unfairness and the particulars provided in response to the President's directions of 17^th October 2006 were similarly brief and uninformative. The Schedule of Issues prepared by the Respondents was not completed by the Appellant, and identified an almost consistent failure by the Appellant in his pleadings to answer the allegations. The Appellant's witness statement appeared to concede, without further specification, there had been breaches of the regulations due to personal stress.

This resulted in the Respondents having to prepare for the hearing on the basis that everything was in dispute and it was still unclear at the start of the hearing which allegations were denied or admitted by the Appellant. The true nature of his case remained unclear, but it was reasonable to infer from the cross examination that many of the issues may not have been in dispute.

30. Mr Curtis sought to persuade us that reference to the presumption against a costs order and the test for deciding whether a party has acted unreasonably being a high one "should not be taken out of context". He argued this merely meant that costs do not follow the event and depend upon the applicant showing that the paying party has acted unreasonably. In other words, the regulations do not require the applicant to demonstrate that the paying party has acted unreasonably to a high degree or wholly unreasonably.
31. The Respondents argued that in consequence of the unreasonable conduct as set out in Ground 1 and/or Ground 2 they had incurred all or most of the costs of the appeal. The difficulty in calculating the percentage incurred as a result of the unreasonable conduct in Ground 3 arose from the unreasonable withdrawal of the appeal at the last moment. Thus, any assessment of liability should err in the Respondents' favour and it would be reasonable to conclude that 50% of the costs were incurred as a result of this conduct.

Tribunal's conclusions with reasons

32. In the absence of the Appellant, we did not consider that an oral hearing would assist us. We considered the application for costs in the context of Regulation 24, our first consideration being whether the Appellant had been unreasonable in the bringing or conduct of the appeal.
33. We do not accept Mr Curtis's interpretation of the standard of test to be applied. Not only do we see no reason in this case to depart from the consistent approach used by the Care Standards Tribunal to date, we believe that it would be wrong to do so for reasons of public policy. It is clear from the 2002 Regulations and the previous decisions that the test that applies in other jurisdictions such as the Special Educational Needs and Disability Tribunal, that a litigant's conduct has been 'wholly unreasonable', does not apply in this jurisdiction. However, Mr Curtis's argument seems to suggest that to say the test is a 'high' one for this Tribunal sets a threshold that is close to 'wholly unreasonable'.
34. We believe there is an important balance to be struck: whilst case law in this jurisdiction has drawn comparison with the principles applied in the small claims court jurisdiction in determining reasonableness, nevertheless it is also necessary to see costs claims in the jurisdiction of the Care Standards Tribunal in a very specific and different context. The primary purpose of the legislation, and therefore the task of the Tribunal, is to safeguard vulnerable members of the public. As a result, litigants frequently face far more complex challenges than would be the case in a small claims court, and ones that have serious and longstanding consequences for an individual's reputation and livelihood.
35. However expensive these proceedings are for the regulatory bodies involved, it is important that the principle of access to justice is preserved. Potential litigants with a perfectly legitimate case may well be dissuaded from appealing if there is an increased likelihood of costs orders being made that involve very large sums of money indeed. That is arguably precisely why the presumption exists and why the threshold is a high one in this jurisdiction.
36. The Tribunal of course always needs to ensure that it does not allow matters of livelihood and reputation to undermine the principle of safeguarding. That issue was raised specifically by the case of Miss Elaine Quigley (Kinderland Montessori Nursery School) v Ofsted [2004] 0285.EY, in which the Tribunal refused to allow a litigant to withdraw her appeal against cancellation of her registration at the end of the hearing. The Tribunal concluded that the overriding purpose of the legislation required it to make findings on the facts proved over ten days of a full hearing.
37. In this case the Appellant withdrew part way through the second day of a seven day hearing: the primary purpose of the legislation was satisfied by that withdrawal since he remains unregistered and therefore cannot be a manager, an outcome that cannot be seen as perverse given the gravity of the allegations made.
38. As the Respondents acknowledged, any person who is refused registration has the right, protected by Article 6 of the European Convention on Human Rights as enshrined in the Human Rights Act 1998, to lodge an appeal against that decision. But the decision whether or not to proceed with an appeal is a very difficult one for an Appellant to make since it involves the Appellant's livelihood, reputation and future. Regardless of his employment status or his intentions in respect of his managerial position, the Appellant stated his wish to clear his name. That is equally his right, however misplaced his belief in the appeal process as the correct way to challenge the process of investigation into what had happened.
39. The Appellant's pleadings convey his strong sense of grievance, including his belief that the evidence from the earlier internal investigation carried out by CT had not supported the allegations, and his perception of the repeated investigations as unduly oppressive. In his representations he states he finds the Respondents desire to continue with the appeal in order to obtain findings "astonishing…I thought it was my appeal against their decision not to register me, not for me to give further opportunities to have findings against me after I had endured at least 3 years of investigations which I was informed concluded with no [child protection] issues relating to myself. And yet after all of these investigations exactly the same evidence which has already been investigated is used against me in my appeal." It is clear from this that he has confused the child protection duties and the regulatory functions and does not understand that the same evidence may be used in different ways and for different reasons.
40. However, there is some evidence to support the view that the process of investigation and registration was overly protracted and repetitive: as Mr Curtis conceded, the period of time that elapsed between the date of the application for registration and the date of the decision was longer than usual. The Appellant's resentment is therefore perhaps understandable, given the stress he says it caused him and his family. He also asserted that he was never informed about the risk of costs being awarded.
41. Mr Curtis made a number of speculations about the Appellant's state of mind and drew inferences from the Appellant's conduct of his case to support his argument that the Appellant was unreasonable in not withdrawing earlier. But we are not satisfied that the burden of proof can be discharged on such grounds. He may well have been reluctant to expose himself to cross examination and the likelihood of adverse findings once he had heard the quality of the Respondents' witnesses. However, it is equally true that litigants, particularly those borne on a tide of belief that they have been wronged, not infrequently do not wake up to the gravity of their situation until faced with the cold reality of a hearing.
42. It is perfectly possible to draw inferences that might suggest the Appellant was angry about his perceived treatment, naïve about the appeal process, and misled by those advising him as to the path that was open to him. Either way speculation is pointless since there was no opportunity to explore these issues. We did not have the benefit of hearing from the Appellant either at the substantive hearing or at the costs hearing. Therefore, we cannot know what was in the Appellant's mind since we never had the opportunity to put any questions to him on the substantive points of his case nor to ask him what lay behind his approach to the appeal. We simply do not know what he would have said in response to cross-examination or to further questioning from the Panel. We should also stress that we had no opportunity to address our concerns about CT's approach to the issues or to question any of those responsible for decision-making in that organisation. That would never have been open to us, since neither party called anyone from CT's management.
43. The Appellant's intentions with regard to his employment were somewhat confusing. At the original hearing he told us he was working for 'PP', CT's sister organisation and did not intend to become a manager. He also told us he had decided some time ago not to return to 'R' Farm and it was not until the day before the hearing that he had decided not to be a manager at all.
44. The Appellant's representations state that he was committed to the appeal process and genuinely believed he had a case against the regulatory body's decision not to allow him to become a registered manager. He says CSCI were aware of the fact that he was not managing 'R' Farm at the time of his appeal, but "it was my and CT's intention for me to manage 'R' Farm in the future if my appeal had succeeded."
45. In his response to further questions from the Respondent on his representations, the Appellant stated "I was not managing 'R' Farm at the time of the proposal to refuse my application and CSCI were aware of this, and in my view it was my intention to appeal their decision in respect of 'R' Farm even though I was no longer managing that unit, because if I had been successful with my appeal then I could have had registration for 'R' Farm, my understanding was that this is what the appeal process was about'
46. We have some doubt about the Respondents' contentions as to the state and timing of their knowledge about the Appellant's employment intentions. In the Skeleton Argument prepared by Counsel for the original hearing dated May 2007 and emailed to the Tribunal on 16^th May, Mr Curtis stated "It seems that the Appellant no longer works at ['R''] Farm and that [CT] has no plans to employ him there as manager even if his appeal succeeds." This does not suggest that the first the Respondents knew of the Appellant's status was on 21^st May.
47. In his representations, the Appellant stated the first he knew of the consequences of this was when Mr Curtis told him on 21^st May. He clearly felt aggrieved that he had not been made aware of this in the preceding 12 months, and it was only then that he reflected on his position and withdrew his appeal having discussed the matter with his wife overnight. We note that the Appellant says he felt that in this respect at least the appeal process had not been transparent or fair and had he known earlier he could not have succeeded he would have withdrawn his appeal at that point.
48. It was clear to us that the Appellant was not seeking to mislead the Tribunal in stating that the legal consequences of his employment status and the option of withdrawal were not known to him until the day of the hearing. His future intentions were much less clear though and appear to have fluctuated throughout the course of the appeal. We do not know what he was really thinking at any given time, but it is possible his primary motivation may have been the desire to achieve the mere fact of registration through a successful appeal in order to prove to his detractors they were wrong about his behaviour. There is some evidence in correspondence that CT supported his application for registration and therefore the appeal until at least November 2006 and from the Appellant's representations it seems CT continued to pay him a manager's salary until the withdrawal of the appeal. However, we repeat that we did not have the benefit of any direct evidence from CT to enable us to ascertain the true situation with sufficient reliability.
49. It is clearly important that any party embarking on an appeal understands and considers carefully the reasons for the action taken by the regulator. Then, as part of their appeal sets out their response, bearing in mind the issues to be determined by the Tribunal. In this case we had the strong impression that the Appellant was totally unprepared and had not thought through the real consequences of appealing. He does not appear to have appreciated what the process was entitled to demand of him and combined with his overwhelming sense of grievance that he was, as he saw it, having to go over the same territory explored by previous child protection investigations, his approach to the issues was tainted throughout by these confusions. This situation was compounded by poor advice, including the failure to tell him he had no reasonable prospect of success.
50. It should be stressed that we regarded Ground 3 as the Respondents' strongest argument in favour of a costs order and the core of the problem in this case. The Panel scrutinised the evidence for this allegation very closely on the basis that there appeared to be more substance to it and there might well be sufficient evidence to support a conclusion the Appellant had behaved unreasonably, particularly given the poor preparation of his case.
51. In his representations and responses he stated that he had "followed all instructions in his case" and had addressed all the allegations put to him through the earlier NSPCC and CT investigation processes. The Appellant's contention that in the number of investigations conducted by various bodies he had never been found guilty may have led him to think that he did not need to answer the serious allegations made by the regulatory body. We do not condone this as an adequate response, nor do we condone his behaviour as a manager or his management style. The Respondents are correct in their assertion that this indicates a failure to appreciate how the system of registration works, but that is a matter that goes to the issue of fitness. If it were the case that such a failure rendered the bringing or conduct of an appeal unreasonable, then many more appellants might potentially be liable to pay costs than currently.
52. The Appellant's written representations before he launched his appeal were indeed brief and arguably were the first example in a similar pattern of response he used throughout the appeal process. His Reasons for Appeal focused on his complaints about the way in which matters had been investigated, but did not address the allegations about the assault, the drug taking, the falsification of records or the failure to manage his deputy or his staff appropriately.
53. His responses to the Direction to particularise his case list the alleged breaches with an attempted response set out under each heading. This included some concessions about mistakes he made in his relationship with T and some direct answers to less controversial points. Some of the points made could be seen as a valid, albeit partial, attempt to respond, although many of the answers were thin, lacking in detail and avoided the central and more serious issues. Some elicited an outright denial, or concerned matters that were difficult to separate out from the relationship with T and the allegations against him, and involved issues that were arguably difficult to address because they required him to prove a negative. This document was sent to the Unison representative responsible for the matter at that stage, but there is no indication either way that Unison challenged the inadequacy of responses with the Appellant.
54. However, whilst these documents do not address any of the central allegations against him, we do not agree that they are entirely silent as to the nature of the denials the Appellant was likely to make. They provide some responses however thin and inadequate, including admissions and concessions, and constitute an attempt to respond. If the Respondents regarded the Appellant's responses as inadequate they could have made an application for an 'unless' order, but they did not do so.
55. His witness statement was characterised by the same approach and repeated in large part his responses to the Direction. Furthermore, at the hearing the cross examination by Mr Tudur did not reveal a substantive case either: the adequacy or relevance of the questioning of witnesses did not assist our struggle to grasp precisely what the Appellant was trying to challenge.
56. It is undoubtedly the case that litigants do not always manage to behave with good sense in the face of very serious allegations that threaten their livelihood and reputation. Indeed, in this instance, regardless of the adequacy of his representation, the Appellant's conduct of his appeal appears to have fallen far short of what might be regarded as objectively sensible, given his wish to clear his name: any sensible person might well have dealt in greater detail with his assertion that previous investigations had not found anything against him, evidence which we did not hear at all and had no chance to explore.
57. The Appellant undoubtedly failed to acknowledge breaches of the regulations or to indicate what parts of the Respondents' factual case was in dispute. However, we would distinguish the facts from those in the Gibson case in that we were not completely satisfied the Appellant had wholly failed to respond or that he had completely failed from the outset to set out his case. The Appellant did not go to the extremes of unreasonableness and behaviour demonstrated by Mr and Mrs Gibson and other litigants against whom costs orders have been made. He did at least cooperate with the mechanics of the process and made some attempt to deal with the paperwork. His answers were undoubtedly unsatisfactory but in contrast to Mr and Mrs Gibson he did not ignore repeated requests to respond.
58. We accept the logic that in an application for costs a party cannot hide behind their representative's conduct of the case, but some comment is necessary in the circumstances. The Appellant was entitled to rely upon Unison as a well-known trade union with the resources to give assistance, including legal advice and representation, to its members. But it would appear he did not receive the standard of service he was entitled to expect, as borne out by Mr Tudur's statement that, until very recently, Unison had no-one in post who was suitably qualified and experienced to advise on, and deal with, such cases, nor had it sought the advice of Counsel. Those were factors that appear to have been beyond the Appellant's knowledge or control.
59. We accept the Appellant's evidence that the first he knew that there was a legal obstacle to the continuation of his appeal was on the first day of the hearing, which was supported by Mr Tudur's statement that the Appellant's legal position had not been clear to Unison until that point. That is clearly not an acceptable situation. Where an applicant has taken advice from a body as large and as apparently professional as Unison in the belief that it has competent officers to present the appeal on their behalf, he is entitled to rely on the advice given to him in the conduct of the appeal, where the advice appears reasonable to a layperson. Whilst we did not have the benefit of any written advices from those representing the Appellant at the relevant time about the merits of the appeal and Unison has not had an opportunity to set out its version of events, nevertheless there is some justification for observing that the union may have failed the Appellant in the preparation and presentation of his case. But a wasted costs order is not within the jurisdiction of this Tribunal and there are other avenues open to the Appellant if he wishes to pursue these issues.
60. We conclude that for the reasons set out above, there is insufficient evidence to justify making an order for costs on the basis of Grounds 1 and 2 of the Respondents' application. There are no grounds for stating that he should not have brought the appeal at all. Nor do we accept the argument that he was guilty of unreasonable delay in withdrawing his appeal in all the circumstances. Although he supplied an inadequate amount of evidence in relation to the issues relevant to an appeal against refusal of registration, he did withdraw in a reasonable time once he discovered that he could not achieve his primary purpose of clearing his name. The question of his employment status and its relevance to the issue of withdrawal is not completely clear and we have some concerns about the Respondents actual state of knowledge in this regard.
61. As far as Ground 3 is concerned, it should be said that in his approach to his appeal the Appellant came close in a number of respects to satisfying a conclusion that his conduct was sufficiently grave and his omissions sufficiently serious and misleading. However, as was pointed out in the Gibson case, there does not appear to be a "one fits all" definition: each case will be different, and unreasonable conduct must relate to the facts and circumstances of each particular case.
62. Having carefully considered the papers in the proceedings and the submissions made by both parties we are ultimately not satisfied that the Respondent has discharged the substantial burden of demonstrating that the Appellant acted so unreasonably in his conduct of the proceedings as to justify making a costs order. We believe the Appellant's conduct of the case fell some way below an acceptable standard but was not quite enough to overturn the presumption against the making of a costs order and the test of unreasonableness. We have reached this conclusion after a great deal of careful analysis of precisely what constituted unreasonable conduct in these particular circumstances.
63. That being said, we believe that it is justified to conclude that the Appellant's approach and mindset were not those of a person likely to be fit to be a manager of an organisation dealing with vulnerable young people.
64. Because we have reached the conclusion that the conduct of the Appellant was not sufficiently unreasonable to satisfy the high threshold, the application for a costs order in this case fails. We do not therefore need to consider the other limbs imposed by Regulation 24.

ORDER:

Application for costs dismissed.

Liz Goldthorpe

Nominated Chairman

Ms Maxine Harris

Ms Linda Elliott

18^th September 2007