Rajendra Kumar Seesurrun

V

SECRETARY OF STATE

[2007] 1152.PVA, 1153.PC

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COSTS DECISION
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Before Ian Robertson on 23 June 2008 

THE FACTS

1.	This is an Application for leave to appeal brought on 10 October 2007 against the decision of the Secretary of State to place the Appellant’s name on the PoCA and PoVA lists provisionally on 12 May 2006. The appeal was therefore under S86 Care Standards At 2000. Further information Forms were served by both parties. On 21 February there was a telephone hearing at which the Secretary of State set out in detail his grounds for opposing the leave application. On 3 March at an oral hearing before the President the Appellant withdrew his Appeal. The Secretary of State accordingly applied for costs in the sum of £1943.81 to cover the period from the telephone hearing up to and including the Oral hearing.
 
2.	The Secretary of State’s case is that his case was set out at the telephone hearing, was unequivocal and therefore failure to withdraw prior to the Oral hearing was unreasonable and led him to incur unreasonable costs  He states that there position was made clear at the telephone hearing, and subsequently in two other telephone conferences.

3.	By E mail dated 14 April 2008 the Appellant’s representative effectively makes a cross application for costs. He submits that they tried via E mail to elucidate the Respondent’s position but received no written response other than a draft letter to their client which they say is ambiguous. Skeleton arguments were to be filed by 29 February, They filed theirs but there was no response from the Secretary of State who accepts that their argument was filed late, at 3.30 on Monday 3 March. An E mail was sent (out of hours) seeking confirmation of the Secretary of State’s position with a view to the oral hearing being vacated. Full confirmation of all the Appellant’s requirements was not received until all parties attended the hearing.

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
6.	Costs can include the costs of the costs application

7.	Regulation 33 is also of relevance;

"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."

8.	It is hard on paper to reconcile the diametrically opposed positions taken by the parties. Both arguments fall, to a large extent upon interpretations of telephone conversations that are not of course fully recorded. It appears to me that to enter into a detailed investigation of where fault, if any, lies would be time consuming and extremely costly. I do not propose to allow good money to follow bad in such an exercise and accordingly direct that there will be No Order for Costs

Ian Robertson
Nominated Chairman
24 June 2008

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