Gokhool (Dial House Nursing Home Littlehampton) v Commission for Social Care Inspection [2005] EWCST 517(EA-JP) (31 October 2005)

Chandnee Gokhool
(Dial House Nursing Home Littlehampton)

v.

Commission for Social Care Inspection
[2005] 517.EA-JP

Decision

Application

1.	On 8 September 2005 the Applicant applied under regulation 24 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 for a costs order following the Respondent’s notification of its decision not to oppose her appeal and the consequent determination of the appeal in her favour by the President in accordance with regulation 33(2).

Procedure

2.	On 19 and 21 September 2005 it was agreed by the parties that the application should be determined by the Nominated Chairman of the Tribunal, after consideration of the representations made and to be made in writing by the solicitors for the parties, without a hearing.

Representation

3.	Written representations were made in writing by Messrs Lester Aldridge on behalf of the Applicant and by Messrs Mills & Reeve on behalf of the Respondent.

Facts

4.	On 7 June 2005 the Respondent sent the Applicant a notice of proposal to cancel her registration in respect of the Dial House Nursing Home in Littlehampton under section 17(4) of the Care Standards Act 2000.

5.	Also on 7 June 2005 the Respondent’s Regulatory Inspector, Mrs Ann Peace applied, without notice to the Applicant, to a Justice of the Peace under section 20(1) of the Care Standards Act 2000 for an order imposing an additional condition on the Applicant’s registration.  A magistrate sitting in the Worthing Magistrates’ Court declared that it appeared that unless an order was made there would be a serious risk to a person’s life health or well-being and made an order imposing an additional condition that no new residents be admitted to the home “until the Registered Provider’s appeal to the Care Standards Tribunal against the cancellation of the home’s registration by The Commission for Social Care Inspection is determined, or until the home ceases to operate”.

6.	In a letter to the Respondent dated 9 June 2005 Mr Allin of Lester Aldridge pointed out that the Applicant could not appeal to the Tribunal until after she had made representations to the Respondent’s Regional Director as to why the proposal to cancel her registration should not be adopted and the Regional Director had made her decision.  He suggested that the process undertaken by the Respondent was “entirely flawed” and reserved his client’s rights to claim compensation for any damage suffered by her.

7.	On 13 June 2005 Mrs Peace made a further application to a Justice of the Peace in Worthing and obtained an order imposing an additional condition that no new residents be admitted to the home “until the Notice of Proposal to Cancel the home’s registration by The Commission for Social Care Inspection is determined or until the home ceases to operate”.

8.	On 1 July 2005 the Applicant appealed to the Tribunal against the order made on 13 June 2005 alleging that there was no serious risk to any person’s life, health or well-being and that, in any event, the order should not have been made at a hearing of which the Applicant had no notice.  The Applicant further alleged that the order was “inherently insidious” and that it had “sterilised the use of the home … ‘by the back door’”.

9.	On 7 July 2005 the Applicant invited the President of the Tribunal to fix “the earliest possible hearing date”.

10.	On 11 July 2005 the President noted that, under the regulations, a response to the appeal had to be filed by the Respondent by 2 August 2005 and directed that there should be a hearing (by means of a telephone conference) in the week beginning 1 August at which he and the parties’ representatives would confront the issue as to whether any time limit should be reduced (under regulation 35A); draw up a timetable for the exchange of documents and witness statements and fix a date for the hearing.

11.	On 2 August 2005 the Respondent’s solicitors filed their response to the appeal indicating an intention to oppose.  They asserted on behalf of the Commission that the procedure adopted was entirely appropriate, having regard to the “findings of the NMC” against the Applicant and that the order obtained allowed West Sussex Social Services to move existing residents to alternative placements in a planned manner while immediately ensuring that no further residents could be admitted to the home.  The Respondent’s solicitors further asserted, in part erroneously, that, if “the written representations” were determined in favour of the Applicant the order would cease to have effect; that if “the written representations” were determined in favour of the Respondent and the Applicant did not appeal then the order would cease to have effect but the registration would have been cancelled and that if “the written representations” were determined in favour of the Respondent and the Applicant did appeal then the order would cease to have effect when the Tribunal had made its decision.

12.	 On 4 August 2005, on the Respondent’s solicitors’ undertaking to inform the Tribunal and the Applicant’s legal representative of the decision taken by the Regional Director on or before 5 p.m. on 18 August 2005, the President directed that there be disclosure by the Respondent of the statements and the oral evidence that was before the Justice of the Peace on both 7 June 2005 and 13 June 2005 by 16 August 2005.  The President also directed that witness statements and documents be filed and served by 23 August 2005; that the Respondent provide 4 copies of a paginated trial bundle by 26 August 2005 and that the case be set down for hearing on 30 August 2005.

13.	On 16 August 2005 the Applicant’s solicitors alleged that the Respondent’s solicitors had failed to comply with the President’s direction in that they had not disclosed “the information as to oral evidence as required by the Order of 4 August 2005” and requested an urgent “Further Directions Hearing”.

14.	On 17 August 2005 the Respondent’s solicitors denied any breach of the order of 4 August 2005 on the basis that no notes were made of the brief oral evidence given before the Justices and that witness statements containing the substance of that evidence would be filed and served by 23 August 2005.

15.	Also on 17 August 2005 the Respondent’s solicitors confirmed that that the Regional Director had, on that date, “upheld the notice of proposal (sic)” to cancel the Applicant’s registration.

16.	On 24 August 2005 the Secretary of the Tribunal asked Mills & Reeve whether, in the light of the confirmation that the Regional Director had adopted the proposal to cancel the Applicant’s registration, the Applicant would be submitting a new appeal against the cancellation of the registration and whether the appeal being prepared would be going ahead as planned.

17.	Later on 24 August 2005 Mr Mayers of Mills & Reeve informed the Secretary of the Tribunal by e-mail that the Respondent would no longer oppose the appeal and that both parties were inviting the Tribunal to vacate the hearing.

18.	On 25 August 2005 Mills & Reeve confirmed in writing to the Secretary that the Respondent would no longer oppose the appeal against the section 20 order made by a Justice of the Peace.  They said that they anticipated that the President would therefore determine the appeal in the Applicant’s favour under regulation 33(2)(a) and suggested that the question whether the Applicant would be submitting a new appeal against the cancellation of the registration should be redirected to her solicitors.  

19.	Also on 25 August 2005, Mr Allin of Lester Aldridge confirmed that, subject to the approval of the Tribunal, the parties had agreed that the hearing listed for 30 and 31 August 2005 should be vacated.

20.	On 26 August 2005, the President determined the appeal in the Applicant’s favour in accordance with regulation 33(2) and invited the parties to make representations with regard to costs within 10 working days.

21.	On 8 September 2005, the Applicant’s solicitors applied for an order for costs and set out the “initial grounds” for their application.

22.	On 12 September 2005, the Respondent’s solicitors submitted in writing that their client had not acted unreasonably in conducting its defence to the appeal and that no costs order should be made.

23.	On 13 September 2005, the Respondent’s solicitors responded in writing to the Applicant’s solicitors’ representations as to costs.

24.	On 19 September 2005, the Applicant’s solicitors said that they would prefer that a decision be made on costs by the Nominated Chairman, following consideration of written submissions.

25.	On 21 September 2005 the Respondent’s solicitors confirmed that they would be content for the decision on costs to be made after consideration of the parties’ written submissions and suggested that the Applicant’s further submissions and schedule of costs should be filed by 7 October 2005 and that the Respondent’s response should be filed by 14 October 2005.

26.	On 14 October 2005, the President extended the time for the filing of the Applicant’s submissions and schedule of costs until 19 October 2005 and granted an extension of the time for response to 26 October 2005.

27.	On 19 October 2005, the Applicant’s solicitors filed their written observations in support of their application for a costs order and a schedule of costs in the sum of £1,410.

28.	On 26 October 2005, the Respondent’s solicitors replied in writing.

The law

29.	An application for a costs order is governed by regulation 24 of the 2002 Regulations.  This regulation 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.

30.	Regulation 24 creates a presumption in favour of no order for costs.  Costs orders do not simply “follow the event”.  Accordingly, the burden lies upon the party making the application for a costs order to establish that the other party acted unreasonably and the standard of proof is high (see the decisions of the Tribunal in Fairburn v. NCSC [2002] 76.NC; Walkes v. OFSTED [2003] 212.EYSUS; Hawkes v. Secretary of State (Costs) [2003] 243.PC and Agarwal v. CHAI (Application for Costs) [2003] 208.EA).

31.	Conduct prior to the initiation of proceedings may be relevant in determining unreasonableness but there must be something unreasonable in the bringing or conduct of the proceedings themselves before a costs order can be made (see Fun Camps Ltd v. OFSTED [2003] 124.EY and A.C. v. OFSTED [2003] 247.EYSUS).

Issues

32.	It was submitted on behalf of the Applicant that:
(a)	the only reasonable inference to be drawn from the late withdrawal of its opposition to the appeal is that the Respondent concedes that its conduct in twice applying to a magistrate for an order was unreasonable;
(b)	before the Respondent applied to a magistrate on 13 June 2005 it was aware that the Applicant was represented by solicitors and should have given them notice of their intentions and/or of the hearing and, had they done so, appeal proceedings would not have been necessary; and
(c)	the Respondent failed to comply with the President’s direction to disclose the evidence placed before the magistrates and that was unreasonable conduct of the proceedings which caused the Applicant to incur additional costs.

33.	It was submitted on behalf of the Respondent that:
(a)	The Tribunal has no power to make a costs order unless it forms the view that the proposed paying party has acted unreasonably in bringing or conducting the proceedings;
(b)	this principle applies as much to decisions made under regulation 33 as to cases where there has been a full merits appeal (see Fun Camps Ltd v. OFSTED [2003] 124.EY);
(c)	the Applicant must therefore satisfy the Tribunal to a high standard that the Respondent acted unreasonably in conducting the case;
(d)	the Respondent did not act unreasonably as alleged or at all;
(e)	the Respondent withdrew its opposition to the appeal before the date for the exchange of witness statements (23 August 2005) and the Applicant cannot therefore properly complain that the evidence given to the magistrates (which was not recorded in writing) was not disclosed;
(f)	the withdrawal of opposition to the appeal was not late: the Respondent gave the Applicant notice of its intention to withdraw on 19 August 2005;
(g)	the Respondent’s decision to withdraw was not, and could not reasonably be construed as, an admission that its conduct in seeking orders from magistrates was unreasonable;
(h)	the Respondent took the view that emergency action was required following findings by the Nursing and Midwifery Council that the Applicant had no insight in respect of her acts or omissions and their potential consequences for her patients but was prepared to reconsider its position in the light of the decision of the Regional Director to adopt the proposal for cancellation but it does not follow that the original decision to apply to a magistrate constituted an unreasonable act in the conduct of the proceedings;
(i)	in Beverley Scott v. Commission for Social Care Inspection
(Brookwood Residential Home) [2004] 418.EA-JP, the President observed that the Registration Authority has a duty to investigate all allegations, whether anonymous or not, and found, on the facts of that case, that the step taken by the Registration Authority to seek an emergency cancellation from a magistrate could not constitute an unreasonable act in the conduct of the proceedings;
(j)	the decision to hear the Respondent’s application without notice having been given to the Applicant was made by the magistrate pursuant to a discretion granted by section 20(2) of the Care Standards Act 2000 and could not therefore constitute unreasonable conduct on the part of the Respondent; and
(k)	in any event, the amount of the costs claimed is too high since it is based on the excessive hourly rate of £200.

Conclusions and reasons

34.	The only allegation of unreasonableness in the conduct of the proceedings specifically relied upon by the Applicant is that the Respondent failed to comply with the President’s direction to disclose the oral evidence placed before the magistrates.  That allegation is not well founded.  On 4 August 2005 the President directed disclosure by the Respondent of the statements and the oral evidence that was before the Justice of the Peace on both 7 June 2005 and 13 June 2005 by 16 August 2005 and further directed that witness statements and documents be filed and served by 23 August 2005.  No written statements were placed before the Justices and, because they were exercising a summary jurisdiction, no record was made of the oral evidence given to them.  In those circumstances, the Respondent’s solicitors took the view that they would achieve compliance with the President’s directions if they prepared witness statements containing the substance of the oral evidence given on 7 and 13 June 2005 and filed and served such statements by 23 August 2005.  That was not unreasonable.  The implication of the President’s direction was that all existing documents should be disclosed by 16 August 2005 and that all documents not yet existing should be filed and served by 23 August 2005.

35.	 That finding is sufficient to dispose of the application for a costs order since the Tribunal has no jurisdiction to penalise a party in costs for actions taken otherwise than in the course of the proceedings taking place before it.

36.	In an appropriate case, the Tribunal can have regard to actions taken before the commencement of proceedings.  If, for example, a party sought, as part of his conduct of an appeal, to defend an obviously indefensible previous action, a costs order might be made against him.  However, that is far from the position in this case.  The Respondent’s action was not obviously indefensible.  Both of the Justices of the Peace to whom applications were made were separately satisfied on the evidence that the conditions for the making of an order were satisfied and that orders should be made.  Further, the Respondent took steps to bring the proceedings to an end as soon as it became apparent that the order appealed against had been overtaken by events.

37.	In so far as it is alleged that the Respondent acted unreasonably in delaying its notification of its intention not to oppose the appeal, the allegation has no substance.  Following the notification of the decision of the Regional Director to adopt the proposal to cancel the Applicant’s registration, the solicitors for both parties correctly concluded that to proceed to a hearing of the existing appeal would serve no purpose.  They agreed that the hearing should be vacated.  The Respondent’s solicitors elected to withdraw their client’s opposition to the appeal in order to bring the proceedings to an end.  The same result would have achieved if the Applicant had withdrawn her appeal.  The Respondent’s solicitors could have insisted on that course.  If the Applicant had declined, it could readily have argued that her conduct of the proceedings would have been unreasonable.  It appears that the Respondent’s solicitors chose to avoid confrontation and to adopt a course that appeared to imply that they were conceding that the Respondent’s original actions were unnecessary and that the decisions of the Justices were wrong, when they intended no such implications.  With the benefit of retrospection it appears that the Respondent’s solicitors’ choice was unwise.  However, it was not unreasonable.  They had no reason to believe that the Applicant’s solicitors would take the false point that their decision to abandon their opposition amounted to an admission.

38.	Following a decision of the Nursing and Midwifery Council which was apparently adverse to the Applicant, the Respondent’s officers decided that they were duty bound to prevent the Applicant from further providing services to residents of a care home.  I could not, and do not, make any finding as to whether that decision was correct or not.  However, in order to achieve an interim position, the Respondent’s officers adopted a procedure that was questionable.  They elected to make a without notice application to a Justice of the Peace for the imposition of an additional condition.  They then made a further without notice application for the imposition of a different condition, notwithstanding that they had been contacted by the Applicant’s solicitors. The Applicant now complains that she was treated unfairly. I have found it difficult to understand why the Respondent’s officers chose to proceed in the way that they did rather than to use the “urgent procedure for cancellation” set out in section 20 of the Care Standards Act 2000.  If they had applied, on notice, to a Justice of the Peace for the immediate cancellation of the Applicant’s registration the Applicant would have been heard and would not have been able to complain of underhand treatment.  The Respondent’s officers may or may not be able to explain their conduct satisfactorily.  However, for present purposes, that is irrelevant since, whether the conduct of the matter by the Respondent before the appeal proceedings were instituted was justifiable or potentially unreasonable, the Applicant cannot establish that the Respondent acted unreasonably in conducting these proceedings.

39.	Accordingly, I reject the Applicant’s application for a costs order.

Order

There shall be no costs order.

John Reddish
(Chairman)
31 October 2005