Singh (Butterfly Hill) v Commission for Social Care Inspection (Costs) [2004] EWCST 321(EA)(Costs) (22 February 2005)

                                                   DAVENEET SINGH                                  Appellant
(Butterfly Hill)

- v -

                       COMMISSION FOR SOCIAL CARE INSPECTION    Respondent
[2004] 321.EA

DECISION (COSTS)

Mr. Daveneet Singh was the "registered provider" at Butterfly Hill, a care home for adults with learning disabilities at 240 Thorpe Road, Norwich. The "registered manager" was a Mr. Phillip Leverett. The registrations of both Mr. Singh and Mr. Leverett were cancelled on the 29th April 2004 (after written representations had been considered) and each appealed against the cancellation. Opposition to the appeal of Mr. Leverett ceased in early September. On the 19th July 2004 directions were given for the exchange of documents by the 19th October and of written statements by the 2nd November. The respondent was to prepare bundles by the 30th November and the appeal was to be heard on the 13th December.

On the 10th November the solicitors for the respondent wrote to complain that they had received only one document and no witness statement; they had informally accepted delay until the 9th November. On the 10th November the appellant wrote that he had decided to withdraw his appeal and it was formally dismissed on the following day. On the 3rd December, the respondent's solicitors sought an order for costs against the appellant, putting their claim on three bases, a) the entire costs of the appeal, b) costs from the 9th September (when, it was said, it should have been clear to the appellant from the cessation of opposition to the appeal of Mr. Leverett only, that he faced insuperable difficulties), c) costs from the 1st November (when, it was said, the appellant gave notice of intention to surrender the lease of Butterfly Hill without arrangements for any other home for his business).

Mr. Singh replied, in a letter dated the 17th December and received on the 22nd , disagreeing with the respondent's solicitors but accepting that he was aware of a risk of costs if his appeal were to have been dismissed. He did not accept the facts presented by the respondents and sought to raise an inconsistency of approach in continuing to oppose his appeal but not that of Mr. Leverett, the two notices of cancellation being in very similar terms. His appeal, Mr. Singh explains, was withdrawn in the interests of his health and his family and not on any consideration of its merits. As to the ten day delay between the surrender of the lease on the 1st November and his abandonment of the appeal on the 10th, Mr. Singh says that he was in the U.S.A. and wanted to return to the U.K. to inform the staff and residents of Butterfly Hall personally of his decision rather than let them hear from a third party. He did not consider the ending of opposition to Mr. Leverett's appeal as a "wake up call" (as suggested by the respondent's solicitors) but rather as an encouraging sign that the same reasonable and realistic view (as the appellant saw it) might be taken in respect of his own appeal. Mr. Singh also refers to the 130 days it took the respondents to decide not to oppose Mr. Leverett's appeal and to the expenditure incurred by Mr. Leverett during that period. In conclusion, Mr. Singh says that a financial payment of any sort would be impossible but goes on to repeat immediately that he understands that "there would have been some sort of financial responsibility had I lost the appeal". He trusts that there will, in the circumstances, be no award to either party.

The question of costs is governed by regulation 24 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002. The Tribunal may make an order for costs only where a party has acted unreasonably in bringing or conducting the proceedings. The Tribunal must consider representations and relevant written material from the prospective payer of the costs and consider whether he is able to comply with the order.

 The evidence in the statements of the witnesses for the respondent comprises a number of very serious allegations against Mr. Singh - the condition and safety of the premises, irregularities in the handling of residents' money, inadequate and improper management of medication, dangerous electrical installations and perilously hot water for bathing being prominent among them. Mr. Singh's response appears to be partly  an assertion that these and other matters were being rectified and partly  criticism of the attitude and conduct of the respondent's officers. While it could fairly be said that Mr. Singh appeared to have given himself "a mountain to climb" in bringing the appeal, first impressions are not invariably accurate and much can turn on oral evidence and on cross-examination. It therefore seems impossible to find unreasonableness in bringing the appeal.

The progress of the appeal, with the possible exception of Mr. Leverett's success by concession, seems to have brought nothing to encourage Mr. Singh; his failure to get to grips with the preparation of documents and witness statements manifest a lack of zeal. Whatever his personal, family and health difficulties may have been (Mr. Singh provides no details), his protracted lack of engagement in the appeal procedures suggests a growing realisation of the difficulties of his position, so that he finally decided to surrender the lease and abandon the appeal. It is clear that he had made that decision by the 1st November. He was aware, from the timetable laid down in the directions of the 19th July, that November, the month before the hearing of the appeal was likely to be a period of relatively intense activity, because the bundles were to be completed and submitted by the 30th November. Nonetheless, he did not communicate his decision for ten days while he made arrangements to return to the U.K. to tell staff and residents personally. Commendable in a way though that may be, Mr. Singh allowed work to continue for those ten days, knowing that the appeal was to be abandoned. It would have been easy to communicate the decision, as soon as it was made, to the respondent's solicitors and it might have been possible for them to stop work without passing on the decision to staff and residents until Mr. Singh had been able to do so (despite his concerns about the permeability of "Chinese Walls"). But, however the no doubt distressing communication to Butterfly Hill might have been handled, even if it had to be by telephone or e-mail, it was unreasonable of Mr. Singh simply to let matters be so far as the appeal was concerned during that ten day period.

Although there in nothing in regulation 24 to confine the costs awarded to the consequences of the unreasonableness, in this case it seems appropriate to do so and to order, in accordance with the respondent's third option, costs from the 1st November. According to the respondent's Schedule C, such costs are £4,365.90. Over half of that is accounted for by a trainee solicitor's work on the documents, much of it, no doubt, work on the preparation of the bundle, which had to be prepared, copied and submitted by the end of the month. The relatively small amount of work done by a partner and a litigation executive, at higher hourly rates than the trainee, seems perfectly reasonable in the circumstances.

The final consideration is Mr. Singh's ability to pay. In his letter of the 17th December, Mr. Singh says that "a financial payment of any sum at this time of my life would be impossible". The respondent in response says that if Mr. Singh is impecunious having lost his business at Butterfly Hill, he has no-one to blame but himself. That, of course, has not been established, and even if it were, it would not enable the Tribunal to make an order against an impecunious Mr. Singh. The criterion is simply ability to pay and there is no exception for self-inflicted inability. But Mr. Singh's assertion that it would be impossible to pay is bare, wholly unsupported by any detail. He refers in the very next sentence to an expectation of having to meet some form of financial responsibility had he lost the appeal. He had also mentioned it at the beginning of his letter, in which he refers to business requiring his attention in the U.S.A. before he could return to the U.K.  The Tribunal is satisfied that Mr. Singh has the ability to comply with the proposed order.

Accordingly the Tribunal orders that Mr. Singh pay £4,365.90 in respect of the costs of the respondent.

ANDREW LINDQVIST
Chairman
Date: 22 February 2005