Chandra v Commission for Social Care  [2007] EWCST 1057(EA) (27 May 2008) 

Dr Girish Chandra
Appellant
-v-

Commission for Social Care
[2007] 1057.EA
Respondent

APPLICATION FOR COSTS

-Before-

Mr A Wadling

DECISION

Preliminary matters
1.	This is an application for costs by the receiving party arising from the decision of the Tribunal on 2 November 2007 to allow an application to strike out an appeal from the decision of the receiving party of 6 June 2007 to refuse to register the paying party as the manager of a Care Home under Regulation 4A(1)(d) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002

Directions
2.	By a letter dated 11 December 2007, the receiving party applied under Regulation 24 for a costs order for costs incurred in contesting the appeal.  A Direction was made on 20 February 2008 for a letter dated 24 December 2007 from the paying party to be treated as a response to the application.  The paying party was invited to respond to the matters relied on in support of the application but made no response.

The Law
3.	Paragraph 24(1) of the Tribunal Regulations 2002 provides that “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.  Paragraph (2)(a) requires the receiving party to produce a schedule of costs incurred in respect of the proceedings and paragraph (2)(b) invites representations from the paying party as to his ability to comply with such an order and consider any relevant written information which he has provided.

4.	In the decision of Bhatnagar v CSCI [2002] EWCST (EA_360 Costs) (13 February 2006) the issue of the jurisdiction of the CST to make a costs order against a party to an appeal was considered in some detail (paragraphs 9 to 16).  The conclusions were that the Tribunal may make a costs order requiring a payment to the other party to cover costs incurred by the receiving party, but only if in its opinion, a party has acted unreasonably in bringing or in the conduct of the proceedings. “In the case of a losing Respondent, attention is directed, primarily to its conduct during the course of the proceedings.”

5.	At paragraph 16 of the Decision, the conclusion reached was that “the Tribunal should concentrate on what the position was at the time that 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.”  As noted in the decision of Agarwah v CHAI [2003] 208.EA, there is an initial presumption of “no order as to costs”, and that the burden rests with the party making the application for costs and the standard of proof is a high one.

Receiving party’s claim for costs (summarised)

6.	The background facts to the appeal are that the paying party and his wife, also a Doctor, were the registered owners of a Care Home in Portsmouth.  A decision was taken in December 2006 by CSCI to cancel their registration.  An appeal was lodged and the matter was heard by a tribunal in June 2007.  The appeal was unsuccessful and the Appellants registration was cancelled on 25 June 2007, (see the decisions [2006] 825 & 826.EA and [2007] 874 & 875.EA).  

7.	The findings of the Tribunal were very much adverse to the Appellant.  The findings included the following;
“We started first by considering the issue of whether or not the Appellants were fit to be proprietors of the care home and we have concluded they are not.”  Certainly since the coming into force of the new regulatory regime there has been little or no evidence of ongoing compliance with the legal and regulatory requirements.”
“The evidence given by both the Appellants leads us to conclude without hesitation that either the Appellants do not understand the statutory and regulatory requirements imposed on them or if they do, they have no ability to implement suitable policies and procedures to discharge their responsibilities.”
“Their attempts to find a suitably qualified manager and dealing with the management issue has in our view been unsatisfactory, insufficient and inadequate.”

8.	On 6 June 2007 CSCI refused an application to register the paying party as manager of the Care Home on the grounds that he was not fit within the meaning of Regulation 9(2) of the Care Homes Regulations 2001.  On 4 July 2007 the paying party appealed against the decision to refuse to register him as a manager.  The appeal was struck out as having no reasonable chance of success.

Claim for costs
9.	The receiving party’s submission dated 2 November 2007 in support of its claim was that the paying party had acted unreasonably in bringing the present appeal, 
	(a) the application was submitted only a few days after the 	tribunal’s decision on his earlier appeal and just before his 	solicitors requested a review of that decision); and
	(b) in his conduct of the proceedings by pursuing the appeal to 	this stage.
	(c) remarks made in the decision of the appeal.

“On the evidence available to me in this hearing, I find that this appeal has no reasonable prospect of success.  The findings of the Tribunal in [2006] 825 & 	826.EA and [2007] 874 & 875.EA) evidence the fact that the Appellant lacks the skills and qualifications necessary to carry on or manage a care home.  His written submissions for this hearing contradict the previous Tribunal’s findings and do nothing to advance his case.”  

Response of the paying party
10.	The response of the paying party in a letter dated 24 December 2007 was addressed largely to the previous decision of the tribunal and that CSCI made an error in making their decision to restrict the admission of residents to the care home and then cancelled the registration of the proprietors before he was given the opportunity to be the registered manager.  This refusal was based solely on the biased, motivated, planned, and prejudicial interpreted findings mentioned in the Inspection Reports.  CSCI should have questioned themselves about the dubious inspection and judgement-and eventual decision, made by their own inspector, the care of residents was excellent with no complaints from clients, visitors, or staff.   All the requirements were fulfilled as mentioned in detail by repeated CSCI inspectors.

Findings
11.	The claims of the paying party of his skills and abilities to be a care manager are not supported in the decision of the previous Tribunal as set out in paragraph 9 of the hearing.  In the light of the decision and comments of the Tribunal such as at paragraph 5 of p10 “We have no confidence in the Appellant’s judgement, that lack of judgement is evidenced in his failure to resolve the issue of the management of the home.”

12.	In all the circumstances of this appeal I find that the paying party has acted unreasonably in bringing an appeal against the decision to refuse to register the paying party as the manager of a Care Home and should pay the receiving party’s costs of £2,612.76.

13.	I order that the paying party to pay the sum of £2,612.76 to the receiving party.

	Anthony Wadling
	Nominated Chairman
	27 May 2008