SEB  v OFSTED  [2004] EWCST 340(EY) (24 January 2005)

IN THE CARE STANDARDS TRIBUNAL

BETWEEN

S.E.B.
						Appellant
v

Her Majesty's Chief Inspector of Schools
in England, Office for standards in Education
OFSTED
					Respondent
[2004] 0340.EY

Before 

Rev Maureen Roberts
 (Chairman)

 APPLICATION FOR COSTS

This is an application for costs made by the Respondent, OFSTED, after the withdrawal of the appeal by the Appellant. The appeal was withdrawn on the 27th October 2004 and, in consequence of this, applying Regulation 33 of the 2002 Regulations His Honour Judge David Pearl dismissed the appeal.
Regulation 33 (as amended by the 2004 Regulations) specifies that the President or nominated Chairman may make a costs order subject to Regulation 24.  The administrative provisions of Regulation 24 have been complied with in this case.

In making this decision I have read the Bundle of documents prepared for the hearing and the Respondent's Summary of Reasons for a Costs Order to be made, dated 19th November 2004. The Appellant made no response to this.

Background.

1. The Appellant ran a Pre-school Nursery for 40 children.  It also provided an out of school club and a holiday play scheme. On the 22 March 2004 the Respondent served a notice of intention to cancel the Appellant's registration. An Objections Panel in June 2004 upheld the notice of cancellation and the Notice of this decision was sent to the Appellant on the 25th June 2004.

2. On the 6th July the Appellant sent her Appeal Form (B1) to the Tribunal and the Respondent replied on 27th July 2004 Response Form (B4).

3. At a Directions hearing on 21st September 2004, attended by both parties, the Appellant in person, various directions were made for, inter alia,  filing other documents and the exchange of witness statements by 13th October 2004 . The Respondent agreed to prepare a Tribunal bundle for the hearing and send it to the Secretary of the Tribunal by the 27th October 2004. The hearing was set down for the 3rd November 2004, with a time estimate of three days. The Respondent sent witness statements to the Appellant by the 13th October 2004 as directed, and sent the Trial bundle to the Secretary of the Tribunal and the Appellant on the 26th October 2004. 

4. The Appellant did not file a witness statement by the 13 October 2004. On the internal Tribunal Office file, there is a note dated 15th October 2004 that the Appellant had engaged a firm of solicitors. However it is not clear who supplied this information or whether it was correct. On the 26th October 2004 the Appellant phoned the Tribunal Office and said that she did not wish to pursue the appeal. She was told to put this in writing and did so by a letter dated the 27th October 2004 and faxed to the Tribunal Office that day. The Appellant said that she realised that this meant that the cancellation would stand and that she intended to close her nursery on Friday the 29th October 2004 without waiting for any further notice from the Respondent. 

5. The Respondent now applies for costs in the sum of £13695-91 on the grounds that the Appellant "has acted unreasonably in not adducing evidence and in withdrawing from the proceedings at such a late stage".

6. The Appellant was invited to respond to this application by the Respondent, specifically addressing the issue of unreasonableness and her ability to pay the sum claimed by the 10th December 2004. She did not so respond.

The Law.

7. Regulation 24(1)  provides: 'Subject to Regulation 31  and 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"). 

8. I have had regard to previous decided cases on costs made by in this jurisdiction and in particular the cases of Funcamps Ltd & Ors v Ofsted (2003) EWCST 124 (EY) 12 May 2003 and Akhter & Anor (Woodbine Villa) v NCSC (2002) EWCST 116 (NC) 27 October 2003. These cases give a number of guidelines the following of which are applicable to the facts in this case:

a. that "the test in regulation 24 (1) is a high one and  the burden is on the receiving party to satisfy the president/chairman/Tribunal to 	that standard that the paying party has acted unreasonably" . 
b. that the Regulation creates a presumption in favour of no order for costs.
c. a paying party in proceedings before this Tribunal need only to be shown "not to have acted in accordance with reason or good sense"  (definition of unreasonable from the Shorter Oxford Dictionary).
d. that litigants in person are not to be judged by the standards of qualified and experienced lawyers.
e. “costs orders are more likely to be made where a party has acted unreasonably in conducting the proceedings. However, inadequate 	written or oral presentations of cases by parties acting without the benefit of professional assistance……are unlikely to be characterised as unreasonable.”

Conclusions and reasons.

9. The Appellant acted in person. I note that there was an Objections Panel and the notice to cancel was upheld.  However I do not consider that the Appellant was unreasonable to continue after that, as the Tribunal is an independent body specifically set up to hear such appeals. Subsequently the Appellant submitted appeal form B1 and supplied copies of documents to the Respondents. She attended the directions hearing.

10. I accept that she did not file a witness statement. However, she had submitted a considerable amount of documentation and the Respondents were aware, from the Objections Panel and her Appeal form, of the grounds of her appeal. Further, having had the Respondent's witness statements on the 13th October 2004 or thereabouts the Appellant phoned the Secretary to the Tribunal to withdraw her appeal on the 26th October 2004, twelve days later. This was confirmed by a fax sent to the Secretariat dated the 27th October 2004.

11. In a case of proposed cancellation I consider that the decision whether or not to proceed with an appeal is a very difficult one for the Appellant to make. The decision involves the Appellant’s livelihood, reputation and future. I do not have an explanation why the Appellant withdrew. In addition I note that this case did not come to a hearing and therefore no findings as to fact or as to the merits of the case have been made.

12. I conclude that, on the record, the Appellant was acting in person in a matter of critical importance to her future and livelihood. Bearing in mind  the high test as to whether the Appellant acted unreasonably I consider she supplied a considerable amount of her evidence and  withdrew in a reasonable time. I am, therefore not satisfied that the Appellant has acted unreasonably in this case, and therefore I make NO ORDER AS TO COSTS.

Maureen Roberts

24th January 2005.