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COURT OF PROTECTION COSTS – OVERTURNING THE GENERAL RULE
Due to the nature of the majority of cases proceeding in the Court of Protection, the Rules of that Court set out the general position to be adopted on costs.
By Rule 156, in property and affairs cases, the general rule is that the costs of the proceedings shall be paid by the protected person or charged to his estate.
By Rule 157, in proceedings concerning the protected person’s welfare, the general rule is “no order as to costs”.
However, as might be expected, there is provision for the general rule is to be distinguished. By Rule 159, the Court may depart from the general rule “if the circumstances so justify and in deciding whether departure is justified the Court will have regard to all the circumstances”. The rule goes on to set out some particular circumstances which the Court will consider, which include the conduct of the parties and whether a party has succeeded in part of its case even if it has not been wholly successful.
The Rule goes on to consider a little more closely the issues as to conduct and specifies that the relevant conduct will be that before as well as during the proceedings; whether it was reasonable for a party to issue, pursue or contest a particular issue; the manner in which a party has made or responded to an application or a particular issue and whether a successful party exaggerated any matter contained within the application or response.
There have been many cases on the question as to whether the Court should depart from the normal rules. For example D v R (Deputy of S) [2010] EWHC 3748 (COP) held that the general rule “is the starting point and a good case has to be made out for departing from it. It is not the case that the court has an entirely unfettered discretion”. In Re RC (deceased) [2010] EWHC B 29 (COP) it was said that departures from the general rule “include conduct where the person against whom it is proposed to award costs is clearly acting in bad faith. Even then, there should be a carefully worded warning that costs could be awarded against them”.
However, it has been said that previous cases do not perhaps add much to the wording of the rules themselves. In London Borough of Hillingdon v Stephen Neary and Mark Neary [2011] EWHC 3522 (COP) Jackson J found that where there was a general rule from which one can depart where the circumstances justify it, it adds nothing definitional to describe a case as exceptional or atypical. Instead the decisions represented useful examples of the manner in which the Court had exercised its powers. He found that each application for costs must be considered on its own merits.
However, in that context, a recently reported case of Somerset County Council v MK [2015] EW COP B1 (30 January 2015), reported in September this year, certainly does provide an extremely useful example of the manner in which the Court will depart from the general rule.
In that case, the local authority was found to have unlawfully deprived the protected person (MK) of her liberty. A decision had been made not to allow MK to return home from respite care due to the discovery of some bruising. The Judge found that the local authority’s investigations into how the bruising came to have been suffered were woefully inadequate and that “a competently conducted investigation would have swiftly come to the conclusion that no or no sufficient evidence existed to be able to conclude P’s safety was at risk by returning her home”. The Judge stated that this finding was “devastating in terms of the local authority’s conduct” and he found that the whole basis upon which the local authority acted was wrong and that the information which concluded that it was wrong was easily available to the local authority.
However, the judgement went even further than that. Whilst the judge found that the case should not really have arisen at all if a proper investigation had been concluded, during the course of the proceedings, the local authority had, more than 3 months after issuing the proceedings, significantly changed its stance and conceded that MK had been deprived of her liberty and that the deprivation had not been by procedures prescribed by law. The local authority changed its position on the factual issues so that it was unlikely to pursue factual findings with regard to the injury sustained by MK. The Judge found continuing justified criticism of the local authority even after that concession by them insisting upon pursuing various matters which he found significantly increased the length of the required hearing to 10 days when if they had acted more reasonably no more than 3 or 4 days would have been required.
The local authority argued that a finding that they were liable for costs would place them in a very difficult position because it would inhibit them in the future in pursuing appropriate cases if they thought that if they got it wrong there would be an order for costs made against them. The Judge gave this short shrift referring back to the general rule and saying that if a local authority fights out a reasonable case but loses, it will be protected by that rule.
The Judge also made it clear that when considering what order for costs to make, he took no account whatsoever of the fact that the protected person was in receipt of legal aid and that both parties were in effect being funded by the public purse. The further consideration that he was dealing with a “cash strapped” public authority was also wholly irrelevant.
The Judge was therefore minded to make an order for costs using his discretion to overturn the general rule. Such was the severity of his finding against the local authority and their conduct that he found that it amounted to “a significant degree of unreasonableness” both in relation to the substantive and procedural issues in the case. He therefore found that the argument for indemnity costs was an overwhelming one and so ordered.
This case therefore is a stark reminder of the powers of the Court, notwithstanding the general rule as to costs in the Court of Protection. It also shows that once the Court has determined that the general rule should not apply, then it is perfectly at liberty to award costs on the far more generous indemnity basis.