Mr Ian Mills 
And 
Mrs Elizabeth Mills
(Exeter House)

V

Commission for Social Care Inspection
[2006] 761.EA
[2006] 762.EA
[2006] 784.EA
[2006] 785.EA

-Before-

Simon Oliver
Deputy Principal Judge

On

11th September 2009 at the Crown Court, Manchester

COSTS DECISION

Appearances

Mr S Burrows, counsel, instructed by Hill Dickinson, solicitors, on behalf of CSCI
Mr O Bull, solicitor, represented Mr and Mrs Mills

Application

This is an application for costs by CSCI made pursuant to Rule 10 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (“the Rules”). CSCI is applying for costs it has incurred between 14th October 2008 and 24th March 2009 against Mr and Mrs Mills totalling £50,115.60. The detailed breakdown of the costs by fee earner total some 5 pages and was sent to Mr and Mrs Mills’ representative, Mr Bull, by letter dated 24th April 2009. 

Legal Framework

1.	My decision on the application for costs in this case is made separate from any decision on the substantive appeal because the hearing that was due to take place did not happen, Mr and Mrs Mills withdrawing their appeal against the decision of the Commission to cancel the registration of Exeter House as a care home. This decision is made bearing in mind the relevant regulations which, because this application for costs was made after 3rd November 2008, are the 2008 Rules.

2.	Pursuant to Rule 10 of the Rules the Tribunal has the power to make an order in respect of costs and expenses.

3.	Rule 10(1)(b) states that the Tribunal may make “an order in respect of costs … if the tribunal considers that a party has acted unreasonably”.  By Rule 10(6), no order shall be made in respect of costs against a person without first giving that person an opportunity of making representations against the making of the order and, if that person is an individual, considering that person’s financial means. 

4.	Rule 10(7) says that the amount of costs to be paid under an order may be decided either by a summary assessment by the Tribunal or by agreement of a specified sum by the paying person and the person entitled to receive the costs (“the receiving person”) or, if there is no agreement, by an assessment of the whole or a specified part of the costs incurred by the receiving person. If the tribunal agrees that there should be an assessment, the approach is set out in Rule 10(8) which states that an application is made to a county court for a detailed assessment of costs in accordance with the Civil Procedure Rules 1998.

5.	An application for an order under Rule 10 may be made at any time during the proceedings but may not be made later than 14 days after the date on which the Tribunal sends the decision notice recording the decision which finally disposes of all issues in the proceedings (Rule 10(5)). To make an application, the person making an application must send or deliver a written application to the Tribunal and to the person against whom it is proposed that the order be made and send or deliver a schedule of the costs claimed with the application (Rule 10(4)). 

6.	In addition, I am aware of the decisions of both AR v OFSTED [2006] 769.EA and RS v Secretary of State [2008] 1278.PVA which summarise the case law in this Tribunal on costs. In brief, the following points are material to this application:
•	The test is a high one, with the burden on the applying party to satisfy the tribunal to that standard that the paying party has acted unreasonably.
•	Unreasonably means: “not to have acted in accordance with reason or good sense” and the decision needs to be taken individually in each case on the facts and circumstances pertaining to that case.
•	In judging whether the 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 was now 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.”

Background

7.	Exeter House was a “residential” care home registered for 46 service users with mental health difficulties or old age. In March 2006 there were 37 users in residence of whom 2 had mental health difficulties, the majority suffered from dementia and a few had physical difficulties associated with old age. In March 2006 the Greater Manchester Police (GMP) together with CSCI attended Exeter House. The GMP removed all the appellants’ records and documentation because there was an investigation by the police as to the circumstances surrounding the deaths of, in particular, three residents. Not long after the police attended the premises Trafford Council moved the residents from the home and Mr and Mrs Mills suspended operations.

8.	In July 2006 the Respondent Commission served a Notice of Cancellation of Registration on Mr and Mrs Mills stating that they intended to close the care home pursuant to Section 14 of the Care Standards Act 2000. Mr and Mrs Mills lodged an appeal against that decision to this tribunal on 15th August 2006.

9.	The first of many directions orders made by me was made on 7th March 2007, as a result of which CSCI served a Preliminary Schedule of Allegations on 13th December 2006 which ran to 17 pages. The Final Schedule of Allegations ran to 44 pages and was served on 20th November 2008, as directed by the Tribunal.

10.	It was unclear during early 2007 whether or not criminal proceedings would be brought against Mr and Mrs Mills but on 7th March 2007 I made an order on the basis of whether or not there would be criminal proceedings. Because of the nature of the case, the early telephone directions hearings included Detective Inspector Ross of GMP so that he could keep us informed about the progress of the investigations. Later on, Ms Sian Williams, Deputy Director of Legal Services at GMP took part in the telephone directions hearings.

11.	The progress of the appeal was then delayed pending the hearings of the inquests of the four residents. It was not clear until late 2007 when these inquests would be heard. In fact, they were all completed by May 2008 and so on 12th May 2008 I held a further telephone directions hearing and made an order for the future progress of the case, leading to a final hearing starting in January 2009. 

12.	As part of the work undertaken by GMP they instructed an expert in care homes, Ms Irene Waters. Her report was disclosed to Mr and Mrs Mills and the Respondent by GMP on 9th July 2008. 

13.	As a result of difficulties with the return of documentation by GMP it was necessary to hold two further directions hearings. The first was by telephone on 20th October 2008 when I made third party disclosure orders against GMP in relation to documents they were still holding. The second took place in person before me at the Care Standards Tribunal office in Pocock Street, London, on 4th November 2008. These later directions reset the timetable and were designed to lead to a final hearing starting in Manchester on 11th May 2009 for up to four weeks.

14.	In November 2008, having already returned 15 lever arch files of papers, GMP delivered to the Appellants 100 boxes or sacks of papers.

15.	It will become necessary to look at the timetable set by the various direction orders in the course of considering the application for costs so I will not set it out in this part of the decision save to note that because there had been a complete failure by the Appellants to comply with the directions on producing a Response, on disclosure and on exchanging witness statements, an Unless Order was applied for on 11th March 2009 and granted by His Honour Judge Pearl on 16th March 2009. 

16.	On 24th March 2009 Mr Bull sent a fax to the solicitors acting for CSCI advising them that Mr and Mrs Mills no longer wished to pursue the appeal and that they would not be reopening the home. This was followed by a letter dated 31st March 2009 withdrawing the appeal. I made an order on 19th April 2009 dismissing the appeal and at the same time stating that there should be no order as to costs. I accept that this was an erroneous decision to make on the question of costs and am aware that it was amended by His Honour Judge Pearl (President) on 28th April 2009. This error was brought to the tribunal’s attention by a letter dated 24th April 2009 from Ms Trewin, solicitor for CSCI. That eight page letter, apart from pointing out that the “no order as to costs” order should not have been made, included an application for costs. 

17.	By an eight page letter dated 11th May 2009 Mr Bull opposed the application for costs and set out his reasons why he contends that the Appellants had not acted unreasonably.

18.	To enable both parties to expand on the written submissions an oral hearing was fixed in Manchester for 11th September 2009 before me as I had had the detailed and lengthy conduct of the case.

Application and Response

19.	This case did not have a final hearing because, as indicated above, Mr and Mrs Mills withdrew their appeal in March 2009.

20.	In her written application for costs Ms Trewin states that the Respondent’s application for a costs order runs from 14th October 2008 because, although CSCI has been concerned about the conduct of the litigation prior to that point, it has sought to take a reasonable, considered and fair approach to the application. It is also noted that Mr and Mrs Mills had been represented throughout by Mr Bull, a qualified solicitor, so they were not in the position of a litigant in person who had no understanding or experience of the proceedings or how litigation should be conducted. 

21.	Ms Trewin explains that the significance of 14th October 2008 is that it was the date on which the appellants committed a further breach of my directions order of 12th May 2008 by failing to provide a Response to the Interim Schedule of Allegations. The Schedule referred to was that dated 1st December 2006. My order required (at paragraph 3) the Appellants to respond to this schedule by 4pm on 14th October 2008. 

22.	Ms Trewin says that the Response was a fundamental stage in the preparation of the case as it would have set out the Appellants case on the various matters following the conclusion of the investigation by GMP and disclosure of documentation by CSCI. At this time Ms Trewin, on behalf of the Respondent, sent a letter to Mr Bull seeking confirmation as to whether or not it was Mr and Mrs Mills’ intention to pursue the appeal. Ms Trewin says that the failure to comply with this case management direction (which she describes as “key”) was wholly unreasonable and lacking in good sense. 

23.	The next important date was 14th December 2008. This was the date agreed in the 4th November 2008 directions order by which the Appellants were required to provide their disclosure. Ms Trewin says that the Respondent has never received any disclosure. In particular, Ms Trewin comments that the failure to provide (for example) the certified audited accounts for the financial years 2004/5 and 2005/6 which had been requested as early as 28th November 2006 was wholly unreasonable.  I remind myself, of course, that although CSCI might have been present when GMP attended the home in March 2006 they were not given access to any of the documents that were seized at that time.

24.	Ms Trewin’s application continues by noting that she was instructed to write an open letter to Mr and Mrs Mills on 22nd December 2008 stating that, in light of Ms Irene Waters’ report, if the Appellants continued with their appeal the Commission would seek a costs order against them at the end of the proceedings. She says that no response was received to that letter.

25.	In addition, Ms Trewin refers in her application to a number of letters written requesting confirmation that the redaction of Ms Waters’ report was acceptable and another letter seeking specific disclosure of certain documentation. None of these letters have been responded to and there has been no explanation given for the failure to reply.

26.	The next point made by Ms Trewin was that the Appellants’ Response to the Schedule of Allegations was due (by virtue of the order I made by agreement on 4th November 2008) by 31st January 2009. Ms Trewin said that she did not receive a response and no explanation was given as to why there was a further failure to comply with the Direction despite a chasing letter of 3rd February 2009 and an e-mail of 5th February. This continued failure to comply with directions is, says Ms Trewin, further evidence of the wholly unreasonable approach taken by the Appellants.

27.	Ms Trewin argues that there was no reason for the delay in the Response to the Schedule because GMP had disclosed to both parties 15 lever arch files of documents which CSCI had also disclosed to Mr Bull on 24th October 2008. As far as Ms Trewin was concerned she received confirmation from GMP on 24th February 2009 that as at 23rd December 2008 there were only a few documents outstanding from GMP and those were returned on 29th January 2009. Ms Trewin does not believe or accept that the preparation of the Appellants’ case rested wholly on the further disclosure of a handful of documents given that 15 lever arch files had already been disclosed.

28.	The next step taken by Ms Trewin was to write to Mr Bull on 3rd March 2009 to ask for an explanation as to why there was a continued delay in providing the Response to the Schedule of Allegations (which had been due on 31st January) and asking when he would be ready to exchange witness statements and expert reports (which were due by 28th February). After a conference with counsel on 9th March, as noted above in Paragraph 15 an Unless Order was applied for and made on 16th March. 

29.	In her April letter Ms Trewin says that there were no substantial developments from 14th October 2008 (at which time the Appellants had been in possession of the Interim Schedule of Allegations for some time and Ms Waters’ report for two and a half months) until the appeal was withdrawn in March. Ms Trewin says that as at the date of her letter of 22nd December 2008 putting Mr and Mrs Mills on notice about an application for costs they had not only Ms Waters report but also had the Final Schedule of Allegations (by 20th November), the 15 lever arch files from GMP (by 24th October) and had had over one month to consider all of this information.

30.	Given that, says Ms Trewin, this is not a case where the Appellants withdrew at the first available opportunity after the bulk of the evidence being served. If that was to have happened, it would have been soon after 22nd December and the Respondent would not have applied for costs against the Appellants. It is the Respondent’s case, therefore, that there has been a continued failure of the Appellants to comply with any directions, thereby adopting a wholly unreasonable approach. That has meant that the Respondent has wasted a significant sum of (public) money in preparing the case for hearing in
•	Preparing the trial bundle
•	Obtaining additional expert evidence
•	Having a conference with counsel
•	Obtaining 13 witness statements
•	Continually seeking confirmation that the Appellants we pursuing the appeal
•	Pushing for compliance with the directions

31.	For these reasons, Ms Trewin says that the Appellants acted unreasonably from 14th October 2008 and therefore the Respondent is entitled to its costs from that date.

32.	Mr Bull’s reply is dated 11th May 2009. He states that he does not accept that the Appellants have acted unreasonably in the appeal or in defence of the allegations made against them, saying that the Appellants always believed that they had a robust case on the appeal and that there was every prospect of the appeal being allowed.

33.	Mr Bull is concerned that the Appellants had been hindered and constrained by the delays in the appeal caused by the GMP investigation and having to wait for the inquests. Although the inquests were completed by May 2008 the Coroner directed the GMP to retain the documents they had seized in 2006 for a further three months in case there was any judicial review application made against the results of the inquests. It was hoped that the documents would have been returned by August 2008 but this did not happen. Without these documents it was not possible for the Appellants to either prepare their own case or provide answers to the Interim Schedule of Allegations.

34.	Indeed, the documents had not been returned by 14th October which is why there was a Third Party Disclosure Order made by the Tribunal on 20th October 2008. When the 15 lever arch files were disclosed at the end of October, these were passed to the Appellants, says Mr Bull, but they found that the documentation required to prepare the Response to the Interim Schedule and the case generally were not within the papers disclosed. In addition, given that the documents disclosed were copies it was necessary in some instances to have sight of the original document.

35.	Mr Bull says that although work was undertaken to draft the Response, the lack of documentation returned by GMP meant that the work that could be done was severely limited and it was not possible to provide disclosure. It was agreed, says Mr Bull, between solicitors for both parties that the Appellants would deal with disclosure as soon as reasonably possible after the documents had been returned to them but limited to any new documents, rather than those already seen by the Respondent.

36.	As to the criticism about the lack of audited accounts, Mr Bull contends that adequate disclosure was given and that the point was never pursued by the Respondent’s solicitors, suggesting that they were not dissatisfied. Mr Bull says that relevant financial matters were mentioned in the Response to the Schedule and the accounts would have been served with the statements of evidence.

37.	Mr Bull continues that the 100 or so boxes and sacks of papers that were returned in November 2008 were in a jumbled state rather than all tidily sorted according to resident. Mr Bull says that it became clear very quickly that essential papers were missing including, in particular, the files relating to the residents about whom there were various specific allegations and to most of the residents who were to be “highlighted” by the Respondent in its case to the Tribunal. Mr Bull says that he wrote to GMP about the missing documents on a number of occasions in November but received only one (unsatisfactory) response on 23rd December 2008. The letter from GMP responds to four letters written by Mr Bull between 19th and 29th November 2008 and states that there were other documents that had been identified that should be returned and that arrangements would be made for them to be returned. On the letter is written in manuscript (I anticipate by Mr Bull) that the letter was posted on 29th December and received on 30th December 2008. A copy of that letter was sent to both the Tribunal and the Respondent’s solicitors.

38.	Mr Bull notes that the documents that were identified to be returned by GMP in December/January concerned residents who had either been the subject of the Inquests or were “highlighted” by CSCI in the Final Schedule. Mr Bull says that whilst the number of pages returned might have been of limited number they were the essential and crucial papers required by the Appellants to deal with the outstanding matters and prepare their case.

39.	Mr Bull says that although the letter of 23rd December says that the papers would be returned they had not been by 29th January 2009 so on that day Mr Bull wrote a letter of complaint to GMP which he copied to CSCI’s solicitors and the Tribunal. Shortly after that most of the documents were returned in February 2009 rather than, as should have happened, in August 2008. 

40.	Mr Bull continued that it was decided that the most essential matter to deal with was the response to Final Schedule and so work proceeded on that, it being served on 23rd March. It is dated 22nd March and runs to some 18 pages. Mr Bull contends that the Appellants did not act unreasonably in serving the Response later than required by the directions because the Response refers to various documents that were only returned to the Appellants in February. Mr Bull says that had the documents been returned when they should have been the time for service set out in the directions would have been met.

41.	In relation to the letter from Ms Trewin of 22nd December 2008 in which she refers to the evidence of Ms Waters and gives the warning about costs, Mr Bull says that it had always been clear that her evidence was disputed and there would have been evidence served by the Appellants that would have contradicted her assertions. Given that the Tribunal would have had to determine the matter, Mr Bull says that the point made by Ms Trewin in relation to Ms Waters’ report cannot be material to the current application.

42.	As to the threat to seek a costs order, there was no need for a response says Mr Bull.

43.	Mr Bull says that had the appeal proceeded the Appellants would have made every effort to catch up with the directions timetable to the extent that it would have avoided the postponement of the appeal.

44.	In addition and meanwhile, Mr Bull says that the Appellants’ position was changing. Mr and Mrs Mills had always been intending to reopen the home once the appeal had been heard. By 2009, however, the two children of Mr and Mrs Mills who were involved in the running of the home had found new careers and there were approaches made to Mr and Mrs Mills about possible alternative uses for the home. As a result, the Appellants came to the conclusion that they would not reopen Exeter House as a care home and would follow up the suggestions for alternative use, which could mean that the property was disposed of. Mr Bull says that consideration was given as to whether to continue with the appeal (whilst Mr and Mrs Mills remained owners of Exeter House) but they very properly and promptly withdraw the appeal once the decision to explore alternative uses had been made. Mr Bull says that this was reasonable and responsible because if they had decided to continue with the appeal and then decided not to reopen the home, their conduct could then have been regarded as unreasonable and have made them at risk of a costs order.

45.	In relation to the matters that I have set out in paragraph 30 above, Mr Bull comments that the bundle was not due until 30th April 2009 and it would have been appropriate to have an agreed bundle anyway; the obtaining of the additional expert evidence is not specified; the conference with counsel should probably have been postponed and the witness statements would have been required in any event, had the case gone to a hearing.

46.	In conclusion Mr Bull says that the Appellants’ difficulties in complying with the directions in the case were wholly due to the failure of the GMP to return essential documentation between August 2008 and February 2009. Mr Bull says that the Respondent and the Tribunal were fully aware of the situation and that, far from being critical, the Respondent was supportive of the Appellants’ difficulties. Mr Bull finishes by saying that should the issue of quantum of costs become an issue for determination he would wish to make representations on many of the matters claimed.

47.	At the oral hearing on 11th September 2009, Mr Burrows on behalf of the Respondent expanded on the points made by Ms Trewin in her letter of 24th April 2009. He said that it was vital that the directions were adhered to to manage the case so that it did not become unruly and so if it was not possible to comply a party could apply to amend them. The fact that Mr Bull did not apply to vary the directions meant that they were breached. The Notice to Cancel was a long and complicated document and the regulator needed to know what the response would be to the Schedule

48.	Mr Burrows said that he believed that the decision to give up the appeal would have been made over a period of weeks or months but as far as CSCI and its solicitors were concerned, this was a live appeal up to 24th March 2009 and so legal fees were being incurred until then.

49.	In addressing the test set out in AR, Mr Burrows accepted that it was a high test but that the best approach for this tribunal to take would be to look at how “unreasonable” is considered in relation to small claims (referring to paragraph 19 of the AR decision). He said that the application was not brought lightly but because there had been unreasonable conduct by the breach of orders.

50.	Mr Burrows submitted that acting unreasonably meant doing something that someone who was acting reasonably would not do. Consequently, a breach would not be committed by someone acting reasonably and, because any breach is difficult to justify, it must be unreasonable, meaning that the test of whether or not something is unreasonable is an objective one rather than a subjective one.

51.	In that context, Mr Burrows said that the failure to reply to the letter of 22nd December was unreasonable even if it is unclear what effect there would have been had there been a response, however it would have given the Respondent an idea as to the Appellants’ thinking.

52.	In conclusion Mr Burrows asked the tribunal to order all the costs sought or to assess them if it was thought that they should be for a shorter time or smaller sum.

53.	In his oral submissions, Mr Bull noted that the case before the Tribunal had started normally with the Notice of Proposal, the Appeal and Response from CSCI but that it then “ground to a halt” as a result of the police investigation which, notwithstanding the time it took, never resulted in either Mr or Mrs Mills being interviewed or a prosecution being brought. This delay was then added to by the four inquests and the Coroner’s direction that the case files should be retained pending any possible application for judicial review. 

54.	Mr Bull also expanded on the points he made in his written response to the costs application of 11th May 2009. He noted that the Appellants were aware of the need to set out their response to the Schedule of Allegations and that as it was focussed on specific residents it was necessary to have those files available to look at to provide the detailed responses that would be needed.

55.	Mr Bull reminded me of the expectation that the documents would have been returned by GMP in August, the fact that they did not come back thus requiring the Third Party Directions Order, the 100 boxes that were returned and the fact that there were documents which the Appellants knew existed but were not returned. This then led to the correspondence with GMP and the final return of documents in February 2009 after the formal complaint had been made.

56.	Mr Bull accepts that it is right that there was no application made to extend the time within which to comply with the directions but says that everyone was kept informed as to what was happening. He conceded that the need to retime-table and vary directions was a valid point but because everyone was kept informed, the Appellants were acting responsibly and reasonably and therefore the fact that there was no request does not mean that they were acting unreasonably. Likewise whilst there was no regular informal contact with the Respondent’s solicitors, they had received copies of all correspondence so were fully aware of what was going on. He did not think that it was necessary to tell CSCI that the appeal may stop as during January and February it was not clear what was going to happen and Mr and Mrs Mills’ thoughts were not sufficiently formed to put forward a clear indication.

57.	 In the end the Response to the Schedule was produced within 6 or 7 weeks of the documentation being made available by GMP. Mr Bull said that although an interim Response was considered, there would have been gaps and it would not have read correctly because, for example, there were references in the Schedule of Allegations that were traceable to certain paragraph in a diary but they could only be properly understood if the following paragraph in the diary was quoted as well. On that basis, Mr Bull contended that it could not be said that the Appellants were being unreasonable about that.

58.	Mr Bull said that there was going to be a counter report to that of Ms Waters and that although it had not been commissioned in February (because of the missing documentation) it was known where it was to come from.

59.	As to the legal principles to be applied, Mr Bull said that the standard to be applied was a high one (AR, paragraph 18) and that any decision had to be made on the surrounding facts of the case. He said that had there been no efforts made to get the documents from GMP then there could have been justifiable criticism but that had not happened. In relation to the letter from Ms Trewin of 22nd December where she referred to Ms Waters’ report, it could not be said that refusing to concede the case as a result of the contents of that report was unreasonable because that report was in dispute and would have been countered, thus making it irrelevant.

60.	Mr Bull confirmed that the decision not to carry on with the appeal had not been made when the Response to the Schedule was sent off but that as soon as it became clear that there was no intention of reopening Exeter House as a care home, he had advised the Appellants of the Tribunal’s view of academic appeals as set out in the case of H v Welsh Ministers. As soon as Mr Bull was advised of the decision not to continue, he had informed both the Respondent and the Tribunal at once, thereby saving costs.

61.	In reply Mr Burrows said that, in addition to the points he had already made, he believed that it was appropriate and necessary to do more than simply copy the solicitors the letters sent to GMP, that whether or not it would have been possible to catch up with the directions was not relevant, the issue being the approach that was being taken to the directions thus far. There was going to have to have been an extension for the witnesses and if the expert had not been instructed by February then the date for the service of the report (28th February) was missed. All of this would have caused problems in the preparation of the case.

Conclusion with  Reasons

62.	In determining what, if any, of the costs should be paid, it is necessary for me to consider Rule 10.  I note that the criterion in Rule 10(1)(b) which could trigger an order for costs being made is that the party has acted unreasonably. 

63.	If I come to the conclusion that I will order costs under Rule 10(1)(b) , the language of Rule 10(7) suggests that, because I can order costs either wholly or in part, I will need to consider what is reasonable in determining the extent of costs under Rule 10(7) as a separate test to that under Rule 10(1)(b). I conclude from this that I have a discretion in determining the matter of costs.  

64.	I believe that, in considering whether to order costs or not, I need to consider whether an order for costs under Rule 10 should be compensatory or punitive.   In other words, is the purpose of the Rule to compensate one party for costs unnecessarily incurred or is it to punish the party against whom the order is to be made?  The latter would mean that ANY cost incurred would be payable, even if they would have been incurred irrespective of any failure on the potentially paying party. I can see that since any order for costs is in itself a punitive measure to consider the matter other than on a compensatory basis would mean, in effect, that any punitive costs order could be a double penalty.

65.	The first stage is to decide whether or not I will make a cost orders and then determine what should be paid. To do that, I need to consider whether or not Mr and Mrs Mills acted unreasonably. I need to state here that I have not been informed of Mr and Mrs Mills’ financial means so I am not considering here the ability to meet an order for costs, just the principle of whether or not costs should be ordered. If I come to the conclusion that costs should be paid I will need to hear submissions on issues of quantum as well as ability to pay.

66.	There is no statutory guidance for me to follow as to what “unreasonably” means. The Regulations that previously governed this tribunal [the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002] contained Regulation 24 which contains similar (but not identical) wording. There is even a provision in Regulation 24 that the tribunal needs to consider whether “he is able to comply with such an order”. I take this to mean the same as Rule 10(6) where it states that the tribunal needs to consider the person’s financial means if the paying party is an individual.

67.	The first question I need to ask myself is whether the cases decided under the 2002 Regulation are still applicable now that the 2008 Rules are in force. I can see no reason why they should not be as the language is similar.

68.	What I find difficult to accept in the cases decided under the 2002 Regulations is the suggestion (made in other decisions by this tribunal) that the test of unreasonableness is a “high” one. If one is to use the Shorter Oxford Dictionary definition of “unreasonable” (as was done in AR) I cannot see why it is necessary to add the additional threshold of it being “high” when that was not contemplated in the Regulations or included in the dictionary definition. In other jurisdictions (such as the Special Educational Needs and Disability Tribunal) the criterion was “wholly unreasonable” rather than unreasonable so it is clear that the legislators are able to draw a distinction between threshold levels if required. 

69.	I understand that the public policy reason of maintaining access to justice for appellants given the seriousness and longstanding consequences for an individual’s reputation and livelihood if the decision is not appealed. However, I can see a risk in setting the test at a high level of never making orders for costs in appropriate cases. If an individual has behaved unreasonably there is no reason why that person should not be at some risk of costs. There is always the proviso that it is less likely that an order will be made against a litigant in person and the language of Rule 10(6) makes it explicit now (if it was not before) that the means of an individual person have to be considered before an order for costs is made against him (or her). I believe that these two caveats provide sufficient safeguards for the majority of litigants to ensure that the principle of access to justice is not compromised and they are not put off from bringing an appeal. It must not be forgotten that in the Care Standards jurisdiction there are not only litigants in person who may need the benefit of some protection but also very large service provider businesses.

70.	In addition, given that it is said in AR at paragraph 18f that “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” it is difficult to see how any general principles can be drawn. If, as I accept, each application turns on the facts of that particular case it cannot be appropriate to try to read in to the Rule (or Regulations) a word that was not there. Had it been intended to set the threshold as “high” it would have been quite easy for the draftsman to set the criterion as “wholly unreasonable”. It was not because the threshold is lower than that and needs to be given its ordinary meaning. I disagree with my colleagues, therefore, in importing the assertion that the test is a “high” one. It is not, it is simply “not acting in accordance with reason or good sense.” 

71.	In respect of whether or not the unreasonableness has to be subjective (that is as it affects the party applying) or objective (that is, as seen by an impartial observer or the judge making the decision) it is clear to me that it has to be objective. 

72.	Having considered the framework in which my decision is to be made, I now turn to this specific case. From the tribunal’s perspective, it is very useful to have a schedule of alleged incidents and a response. When there is a Notice of Cancellation of Registration that is served (rather than by an emergency closure under Section 20 by a magistrate) it is very often the case that there are several matters that have given rise to the decision to cancel the registration, some of which are more important than others. The fact that the 2006 schedule ran to 17 pages and the 2008 Schedule ran to 44 pages shows that had the case proceeded there were a large number of matters that the Tribunal would have needed to consider.

73.	The first matter I am concerned with was the failure to respond to the Interim Schedule of Allegations by 14th October 2008. I am, of course, aware of the difficulties that Mr Bull was experiencing in obtaining the return of documents from GMP and the need for me to have to make the Third Party Directions Order. It is equally clear that Mr Bull was still writing to GMP during November and after the Third Party Directions Order when it became clear that not all of the documents had been returned. The letter from Ms Williams on behalf of GMP of 23rd December suggested that the papers would be returned sooner rather than later. That they were not returned until February cannot be the fault of Mr and Mrs Mills because I am satisfied that Mr Bull was doing all that he could to obtain these documents. 

74.	I am satisfied, therefore that whilst there was delay in getting these documents back from the police it was not the fault of Mr and Mrs Mills. I am also satisfied that that delay did affect the ability of the Appellants to comply with time limit for the production of the Interim Schedule. Indeed, this was acknowledged, in effect, by the Respondent when the timetable for disclosure, response to the Final Schedule, statements and the hearing was reset at the directions hearing on 4th November 2008.

75.	In relation to the production of the Response to the Final Schedule, I can understand the frustration of Ms Trewin in not receiving it when the order required it to be delivered. There was clearly a delay in getting the Response to the Final Schedule prepared. I accept that there was a continuing difficulty in getting the documentation back from GMP even in February 2009 as I had been asked by Mr Bull to consider making an order that if the papers were not returned by a given date the acting Chief Constable of GMP should attend before the Tribunal when I was in Manchester on other matters to explain why they had not been returned.

76.	There was also the failure to keep the date for the disclosure of the documents to the Respondent’s solicitors. I accept that if the GMP had not returned the paperwork in time for the disclosure date to be kept, once again it was not the fault of Mr and Mrs Mills. I also accept that it was agreed that disclosure by the Appellants need only cover those documents not disclosed by CSCI and that until the final documents were returned in February it would not have been possible to comply with that direction in any meaningful way.

77.	Should Mr and Mrs Mills have kept the Respondent informed of what was happening? I am satisfied that they did as all of Mr Bull’s letters were copied to the Tribunal and CSCI’s solicitors. I do note, however, that Ms Trewin did apply for an Unless Order on 11th March 2009 which suggests that there might have been better communication. Of course, it might have been coincidental that this was immediately after the conference with counsel. It also raises the question of why the Unless Order was sought at this point rather than in October or January when other deadlines were missed.

78.	Should Mr Bull have asked for a variation of the directions order given the difficulties he was facing in having the documents returned? I note that Mr Bull says that it was not necessary to apply to vary the directions because Hill Dickinson and the Tribunal were aware of what was going on and Mr Bull believed that the May hearing date would have been achieved even though the Response to the Final Schedule was served in late March. I do not share his optimism that the May hearing would have been achievable and believe that it would have been appropriate to apply for a variation of the directions given in November 2008. That would not only have formally told the Respondent and the Tribunal that there were difficulties in meeting the dates set but it would have also reduced the risk of missing further deadlines set by the November directions. 

79.	Was the failure to seek a variation in the directions unreasonable? It was certainly not helpful not to have done so and it would have been helpful to vary the timetable in about January. I am not able to conclude, however, that the failure to apply for the variation was unreasonable. Not helpful is not unreasonable. I can only speculate but I wonder if the reason there was no application to vary was linked with the fact that Mr and Mrs Mills were almost certainly thinking about alternative uses for Exeter House at this time.

80.	Should there have been a reply to the costs letter of 22nd December? As mentioned above, Mr Bull said that had the case proceeded, there would have been evidence served by the Appellants that would have contradicted Ms Waters assertions and that in the end the Tribunal would have had to determine the matter and so the point made by Ms Trewin in relation to Ms Waters’ report cannot be material to the current application. I accept all of that, but I am concerned that Mr Bull did not communicate this to Ms Trewin. Would it have made any difference? There was a tacit acceptance by Mr Burrows that it would not have done so. Had there been a reply, it would have said that there is counter-evidence to be served and that those matters relied on from Ms Waters report were not accepted. If there had been a reply it would not have taken matters any further. Whilst it might have been professional courtesy to respond, the failure to do so cannot be unreasonable or, had it come to it, increased the risk of a costs order being made. It is not as if the letter of 23rd December 2008 was a settlement offer such as a Part 36 offer made in civil proceedings.

81.	To my mind, the failure to comply with (and thus breaching of) directions does not, of itself, mean that there was unreasonable behaviour. The breaches need to be seen in the context of the reasons, the length and the consequences of the breach. The failure of the GMP to return the 100 boxes until January 2009 notwithstanding my order of October 2008 and the failure to return the balance of the documents until after Mr Bull’s complaint of 29th January 2009 was outside the Appellants’ control. I have no doubt that the lack of documentation meant that there were problems in producing the documents within the timetable. In consequence I do not find that Mr and Mrs Mills acted unreasonably in relation to the breaches of the directions. 

82.	I have some difficulty in understanding why there appears to have been no communication by the Appellants about what was going on in early 2009 in respect of an alternative use or in relation to the delay by GMP in returning the outstanding documents. Whilst I cannot be sure, of course, I have the impression that this was because Mr Bull was without instructions. The lack of any information about what was going on was not helpful. Had the Respondent been informed of the reasons for the lack of progress by a direct letter rather than by receiving copies of correspondence addressed to third parties, I suspect that they would have been sympathetic and allowed extra time. It is the silence that caused the problem in the minds of the Respondent and its solicitors. Had there been some communication about the various options that were being explored it might have been that the Respondent would have come to the conclusion that it did not need to do so much preparatory work and that the case would be withdrawn. Although Mr Bull says that there was nothing certain until 24th March 2009 I agree with Mr Burrows that it is highly likely that the decision taken on that day was reached after one or two months of discussion and exploration of the options. If the thinking had been put in a “without prejudice” letter, whilst it would not have bound Mr and Mrs Mills it would have assisted the Respondent and perhaps put less pressure on everyone to try to adhere to the timetable.

83.	Is the silence about the difficulties and the developments I have identified such that it makes the Appellants’ behaviour unreasonable? I need to bear in mind the cases mentioned in Paragraph 7 above and my comments in Paragraphs 68 to 71 above. Objectively it might have been frustrating but that does not mean that it was unreasonable.

84.	I can appreciate that Mr and Mrs Mills’ situation evolved over time. I see nothing unreasonable in them wanting to pursue different options. However, it seems to me that it would not have been too difficult for Mr and Mrs Mills to have informed CSCI about their change of plans on a without prejudice basis. I am aware from the many cases I have dealt with that this is not an uncommon practice and would have meant that the Respondent would have been able to gauge the likelihood of the case continuing to a final hearing at an earlier stage than being told that the appeal was withdrawn on 24th March 2009.

85.	In all the circumstances, whilst I have considerable sympathy for the Respondent, as I mentioned above, I need to consider matters objectively rather than the direct effect the actions have on the applying party. In respect of each and every matter raised in Ms Trewin’s letter of 24th April 2009, I have come to the conclusion that the behaviour cannot be regarded as unreasonable even using the definition I have said should be applied. It follows that if the “high” threshold was applied the application would fail that too.

86.	Is it possible for someone to act unreasonably for a short period of time and then become reasonable again? If there has been one short period of being unreasonable does that taint the whole of the steps taken by that party as being unreasonable or is it just for that limited period? The answer to that is academic in this case because I have found that none of the behaviour complained of was unreasonable. However, it does seem to me to be a point that may have to be considered in another case in the future.

Order

The application for costs is dismissed.

Signed:

Simon Oliver
Deputy Principal Judge, Care Standards
12th January 2010