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England and Wales Care Standards Tribunal |
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You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Gokhool (Dial House Nursing Home Littlehampton) v Commission for Social Care Inspection [2005] EWCST 517(EA-JP) (31 October 2005) URL: http://www.bailii.org/ew/cases/EWCST/2005/517(EA-JP).html Cite as: [2005] EWCST 517(EA-JP) |
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Gokhool (Dial House Nursing Home Littlehampton) v Commission for Social Care Inspection [2005] EWCST 517(EA-JP) (31 October 2005)
Application
Procedure
Representation
Facts
The law
Issues
(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.
(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
Order
There shall be no costs order.
John Reddish
(Chairman)
31 October 2005