Ulliott v Secretary of State [2004] EWCST 0343(PC)(Costs) (08 December 2004)

 Thomas Samuel Ulliott
-v-
Secretary of State

[2004] 343.PC

-Before-

His Honour Judge David Pearl
President

Decision on Costs

Background
1.	Thomas Samuel Ulliott (the Applicant) was confirmed on the Protection of Children Act List on 16th June 2004. He appealed the decision of the Secretary of State (the Respondent) and submitted Form A1 signed on 6th July 2004 and received by the Secretariat on 8th July 2004.
2.	The Respondent by letter dated 6th August 2004 sought an extension of time under Regulation 35(1) to submit the Response Form B4. Time was extended by Order dated 9th August 2004 until 6th September 2004. 
3.	A Third Party Disclosure Order was made on 20th August 2004 requiring the West Surrey Police Child Protection Team to disclose copies of the Applicant’s police file, to include witness statements and taped video evidence.
4.	The A4 Form did not arrive at the Secretariat until 17th September 2004. No formal application had been made by the Respondent for any further extension of time. 
5.	According to the file, it would seem that Respondent on 6th September 2004 did send an email to the Secretary to the Tribunal which states: “We are still awaiting the information from Judge Pearl’s 3rd Party request so we are not yet in a position to let you know our intention to oppose or not, which we shall do as soon as we get this information.” A copy of this email seems to have been sent again to the Tribunal on 16th September 2004. Although unclear from the file, it is probable that the email was sent again as a result of a letter from the Applicant’s solicitors, Williamson and Soden, dated 10th September 2004, received on 14th September 2004, enquiring how matters were progressing, as no Form A4 had been served by 6th September 2004. 
6.	The somewhat informal communication between the Respondent and the Secretary to the Tribunal on 6th September 2004 does not of course constitute an application to extend the time limits for submitting  the Response Form A4. 
7.	The matter was not drawn to my attention until 21st September 2004. At that time, I felt it desirable to dispense with the lengthy period for filing the Further Information Forms A5 and A6 and to proceed straight away to a Preliminary Hearing (preferably by telephone) to fix dates for exchange of statements and documents and to fix the date of the hearing. Letters were sent to both parties on 23rd September 2004 stating “The President wishes to invoke Regulation 35(1)(b) whereby the President may reduce any time limit mentioned in these Regulations if he considers it reasonable to do so and the parties in the case agree to the reduction.” The parties were asked to return the Further Information forms within five working days subject to their agreement for expedition.
8.	By letter dated 27th September 2004, Solicitors acting on behalf of the Applicant, Williamson and Soden, made a formal application for an Order that the Respondent shall not be entitled to take any further part in the proceedings by virtue of Paragraph 4(2) of Schedule 4. This paragraph states: “if the Respondent fails to respond as requested, he shall not be entitled to take any part in the proceedings.” An Order was made on 28th September 2004 directing the Respondent to respond to the Application of 27th September 2004. Paragraph 4 of the Order states: “The Respondent is required to respond to this application within five working days of the receipt of this Direction. If no reply is received by this date, an Order will be made in the terms sought by the Applicant, and the Appeal shall accordingly be allowed.”
9.	In fact, by letter dated 30th September 2004, received by the Secretariat on 1st October 2004, the Deputy Head of the Protection of Children Act List wrote to the Secretary to the Tribunal as follows: “After very careful consideration of new evidence we have managed to obtain from the police we have decided to withdraw our opposition to Mr Ulliott’s appeal.”
10.	Accordingly, and in compliance with Regulation 33(2), the appeal was determined in the Applicant’s favour by Order dated 5th October 2004. The Deputy Head of the Protection of Children Act List wrote to Williamson and Soden, the Solicitors for the Applicant, by letter dated 7th October 2004, that following the successful appeal to the Tribunal, the Secretary of State has removed Mr Ulliott’s name from the Protection of Children Act List.
11.	By Order dated 5th October 2004, the Applicant was invited to inform the Tribunal whether he wished to seek an Order for Costs. He was directed, if so advised, to address the issue of whether the Respondent had acted unreasonably in conducting the proceedings, and to provide a Schedule of Costs in respect of the proceedings.

Submissions on Costs
12.	Solicitors for the Applicant replied to this Order by letter dated 8th October 2004 received by the Tribunal on 11th October 2004. The letter states that the “gateway” criteria for inclusion on the List were not satisfied in this case, but even if they were, “on no analysis can it be said that the Respondent had in his possession sufficient factual information for him reasonably to be satisfied that the substantive criteria for inclusion of the Applicant’s name in the List were fulfilled.” The argument advanced, therefore, is that as the act of issuing the 16th June letter was “unreasonable”, the maintenance by the Respondent of a position in the proceedings based on that letter was necessarily unreasonable from the outset. The Solicitors state that nothing had changed as at 30th September, because the “new evidence” from the Police (disclosed as a result of the Third Party Disclosure Order dated 20th August 2004), although material that the Respondent may not have seen before, is not new. The Solicitors state that this evidence was known to have existed since August 2003, and was material that the Respondent should have seen prior to making the decision to include the applicant on the List. 
13.	The Applicant therefore applies for an Order for Full Costs incurred from June 16th 2004 onwards, amounting to £2904.60p )(inclusive of VAT). 
14.	The Applicant’s Solicitors state that even if it is not successful in relation to the general application for all costs, there is also a secondary submission that the conduct of the matter by the Respondent after receipt of the appeal was unreasonable in that the Respondent failed to comply with time limits, but nevertheless submitted a Response Form (A4) without having obtained the appropriate leave, thus necessitating additional work by the Applicant’s solicitors.
15.	The Respondent submitted a Response to the Application for Costs by letter dated 3rd November 2004, received by the Tribunal on the 4th November 2004. The Respondent submits that the making of a Costs Order would be inappropriate and he denies that he has acted unreasonably in the conduct of the proceedings. The letter states that the Respondent withdrew his opposition as soon as it became apparent that he would be unlikely to satisfy the Tribunal on the balance of probabilities that the necessary criteria to maintain the listing (Protection of Children Act 1999 s 4(3)) existed. It is said that the Respondent withdrew his opposition at a very early stage in the proceedings.
16.	The Respondent submits in the letter that costs can be awarded only from the date when the proceedings start (Fun Camps v OFSTED [2003] 124.EY), which is the date when the appeal is served (in this case 12th July  2004). The Respondent also points to the fact that 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. 
17.	The Respondent states that by 6th September 2004, the Respondent had not received documents sought under the third party disclosure order. The letter states: “The Respondent telephoned and emailed the Tribunal on 6th September 2004 to advise the Tribunal of the current situation and that he was not in a position to make a decision in relation to his opposition.”
18.	The Respondent states that if, contrary to the submissions, the Tribunal is minded to make an order, that the Tribunal makes an order for payment as agreed or failing agreement, as assessed, as the Respondent considers the costs set out in the costs schedule to be excessive in a number of respects, including the time spent and the hourly rate.
19.	The Applicant’s solicitor was provided an opportunity to respond to the Secretary of State’s letter, and he did this by letter dated 15th November 2004 received on 16th November 2004. The 15th November letter submits that the Costs Order being sought is an Order pursuant to regulation 33(2) rather than an Order specifically pursuant to regulation 24(1). In response to a question from the Tribunal to the Applicant’s solicitor concerning the thrust of his letter in the light of the amendment to Regulation 33 by SI 2004 No 2073, the Solicitor replied on 2nd December 2004 that his submissions dated 8th October 2004 were not affected. Unreasonableness in this case arises primarily, it is claimed, on the basis that the statutory jurisdiction was never engaged.

Decision on Costs 
20.	The Secretary of State has a duty under Protection of Children Act 1999 s 2(7) to confirm an individual on the list if he is of the opinion (a) that the organisation reasonably considered the individual to be guilty of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm; and (b) that the individual is unsuitable to work with children.
21.	The Tribunal, on an appeal, has a different statutory framework. Section 4(3) of the Act states that if on an appeal, the Tribunal is not satisfied of either of the following, namely (a) that the individual was guilty of misconduct…which harmed a child or placed a child at risk of harm; and (b) that the individual is unsuitable to work with children, the Tribunal shall allow the appeal…otherwise it shall dismiss the appeal.
22.	Thus, in Protection of Children Act Appeals, the Tribunal does not address solely the issue whether the Respondent’s view as to the reasonableness of the Organisation’s consideration of the matter was correct. The Tribunal has a broader and more extensive responsibility. Given that the tests are different, it cannot be appropriate for the Tribunal, in the context of a costs application, to decide on whether the Secretary of State had applied correctly the section 2(7) test when confirming an individual’s name on the List. I cannot accept the argument advanced by the Applicant’s Solicitor that “unreasonableness arises primarily on the basis that the statutory jurisdiction was never engaged.”
23.	Costs Orders can only run in these cases from the date that the Appeal has been launched. It is necessary to look to see whether the Respondent, in this case, has acted unreasonably in conducting these proceedings; that is from 8th July 2004 when the Application Form A1 was filed. 
24.	The case law from the Tribunal makes clear that the test is a high one. Reference can be made to Hawkes v Secretary of State [2003] 243.PC and to Agarwal v CHAI [2003] 208.EA.  In Agarwal, the Tribunal said:
“In a case where the Respondent notifies the Secretary of the Tribunal in writing that he does not oppose or no longer opposes an appeal the question of a costs application is governed by Regulation 33 of the 2002 Regulations as amended. 
Applying the approach taken by the President in Fun Camps Limited Mr S O'Donahue Mr A James v OFSTED [2003]124.EY the Appellant needs to establish "that the paying party must be shown to have acted unreasonably in bringing or conducting proceedings. This provision applies under Reg 33 as much as it does in a situation where there has been a full merits appeal".
The test is a high one as stated in Dr R A Fairburn (The Old Rectory Nursing Home) -v- N C S C [2002] 76 NC. The Respondent submitted that the approach taken by the President in Alan Hawkes -v- Secretary of State [Costs] 2003 243 PC should be adopted, namely that there is a presumption in favour of no order as to costs and that the test to be applied to rebut the presumption is a high test and that the burden of proof is on the Appellant to demonstrate that the Respondent acted unreasonably in bringing or conducting the proceedings.”  [This approach was adopted by the Tribunal in that case]
25.	Some help can be obtained as to the meaning of the word “unreasonable” by considering the way the courts have dealt with costs in the small claims track under the Civil Procedure Rules rule 27.14(2)(d) which refers to costs “as may be assessed…and ordered to be paid by a party who has behaved unreasonably”.
26.	Examples are given in the Civil Court Service of the making of unnecessary applications, refusing to negotiate, failure to comply with pre-action protocols, deliberately mis-stating the value of a claim or failing to attend court. To this list can be added, in my view, the failure to comply with Directions.
27.	Applying this principle to the facts of this case, I have decided that the only unreasonable conduct of the proceedings in this case was the failure by the Respondent to seek an extension of time for the filing of the Response Form A4, and for submitting Form A4 after the expiry of the time that had been provided. Experienced civil servants should know that informal communications with the Secretariat, which seemed to have happened in this case on September 6th 2004, is no substitute to seeking a formal application for an extension of time. This was of course done for the first extension of the time that was required for the submission of the Form A4. Extensions that are granted under Regulation 35 are judicial extensions, and one was not sought in this case. 
28.	It is my finding therefore that the Respondent behaved unreasonably in the conduct of the proceedings as from  6th September 2004 and up until 30th September 2004. In these circumstances, the Applicant is entitled to the costs that were unnecessarily incurred during this time. 
29.	The Schedule of costs for this period amounts to total of just short of 10 hours of work at £120 per hour. The work was carried out by a Solicitor of 20 years plus experience, and it is submitted that the £120 per hour was a discount from the normal rate of £150 per hour. I have looked carefully at the Schedule of Costs and the printout attached to it. I consider the amount charged  and the time devoted to this work as set out in the schedule to be reasonable and proportionate to the issues involved.
30.	I do not consider that it would be proportionate for this matter to go to the County Court for an assessment by a District Judge. The Tribunal in a case such as this is able to make an Order based on the information that has been submitted.
31.	 If the parties are unable to arrive at an agreement, on which it is open for them to do under Regulation 24(3)(a), the Order that I consider appropriate is for a payment to the Applicant under Regulation 24(3)(b) of £1200. This sum is exclusive of VAT which is payable in addition.

ORDER ACCORDINGLY

His Honour Judge David Pearl
President
8th December 2004.