England and Wales Care Standards Tribunal

 


IN THE CARE STANDARDS TRIBUNAL
RS And THE SECRETARY OF STATE --------------------------------------------- COSTS APPLICATION ----------------------------------------------- [2008] 1278.PVA

Before Mr I Robertson on 23 June 2008

FACTS

1. This is an Appeal brought by RS against a listing by the Secretary of State upon both the Protection of Children and Protection of Vulnerable Adults lists. The Appeal was lodged on 28 March 2008. The Secretary of State was notified of the Appeal on 3 April and on 28 April they withdrew their opposition to the Appeal. The Appeal was accordingly allowed by Order dated 29 April 2008

2. By a letter dated 15 May the Appellants solicitors sought an Order for costs. Their grounds were;

The Respondent acted unreasonably because the Respondent acted on the uncorroborated evidence of the resident and the Applicant (sic) was given no opportunity to put forward his case"

3. The Secretary of State responded that opportunities had been provided during the provisional listing stage to make representations and those representations were considered. The decision to withdraw opposition to the Appeal was based upon an analysis of the evidential requirements of the Tribunal. The Secretary of State cited a number of previous Tribunal decisions in support of the contention that costs should not be awarded.

THE TRIBUNAL RULES

4. The relevant Regulation is Regulation 24 this 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."

5. The decision of AR v OFSTED [2006] 0769.EA helpfully sets out the basis of cost orders and summarises some guidance provided by other Tribunal decisions.

The Case Law on Costs

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.

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

6. It follows therefore in this case that the Secretary of State acted expeditiously in considering the Appeal and withdrew his opposition at the earliest opportunity. As the Tribunal in L and Secretary of State [2005] 547 PVA stated;

"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"

7. The appellants have failed to show this and accordingly I make No Order for Costs.

Ian Robertson