P was 87 years and had two children with his first wife, who died in 2007.
On 17th July 2007 P signed an EPA appointing his children, Jacqueline and Nigel, to be his attorneys for all his property and affairs.
In 2009 he met another lady, Jeanne, who had a son named Felix. On 1st January 2010 P gave Felix £100,000 with the intention to buy out Felix’s share in Jeanne’s home. P and Jeanne married in 2010.
In 2012 P gave Felix another £5,000, but P was not entirely sure why he did so. This caused alarm to the attorneys who arranged a meeting with the bank so the bank could inform them of expenditure over £1,000.
After no objections the EPA was registered on 18th June 2013.
In August 2013 the attorneys restricted P’s income to £212 per month and limited his access to capital held in a joint account with Jeanne to £6,000.
P executed a deed to revoke the EPA, which was witnessed by Dr Viale, a consultant in old age psychiatry. P then made an application pursuant to paragraph 16(3) of Schedule 4 of the Mental Capacity Act 2005 (‘the Act’).
P provided the court with an assessment of capacity from Dr Viale, and a letter from Dr Hughes, P’s consultant cardiologist both stating that P had capacity.
The attorneys objected to the application stating that they believed that P lacked capacity and questioned Dr Viale’s assessment; and after several orders requiring them to provide certain evidence, the court granted the application.
The attorneys sought permission to appeal that order.
Grounds for appeal
The attorneys stated that they had not breached previous orders and the attorneys’ objections should not be struck out. The objections had not been heard properly and the hearing of DJ Mort was procedurally wrong and unfair (details at paragraph 34 of the judgment).
The court considered schedule 4 of the Act that deals with EPAs.
The attorneys relied upon Re F  MHLR 96 where it stated that the court should facilitate the necessary determination of P’s capacity if there is doubt and A Local Authority v TZ  EWHC (COP) where the court must consider all the evidence and not just the views of the experts. They also relied on Marcan Shipping (London) Ltd v Kefalas and another  1 WLR 1864 that court orders needed to be precise to ensure there was no doubt at what needed to be done.
The court referred to Part 20 rules 169 to 182 of the Court of Protection Rules 2007 relating to appeals. Setting out that permission should only be granted if:
- the appeal has real prospects of success; or
- there is some other compelling reason the appeal should be heard.
- the judge was wrong; or
- the decision was unjust because of serious procedural or other irregularity in the proceedings.
The court refused permission. The court stated that the attorneys had ‘lost sight of the bigger picture, which is the duty to respect the P’s right to revoke his EPA at any time when he had capacity to do so.’
Even if permission was granted and the appeal succeeded the court would revoke the EPA as the attorneys were no longer suitable to act as the relationship had broken down irreparably and their continued involvement would cause P ‘embarrassment and distress.’.
The court departed from the general costs rules and ordered the attorneys to pay the costs from 25th March 2015 (DJ Mort’s final order) assessed on a standard basis.
The attorneys in this case had not commissioned their own expert evidence to show that P lacked capacity - they were questioning the instructions to Dr Viale and the basis of his assessment. The court concluded that Dr Viale was experienced and had examined P 4 months earlier; there was no argument of his lack of independence or conflict. Dr Viale’s assessment was time specific and decision specific; Dr Viale applied the criteria in section 3(1) of the Act.
DJ Mort was satisfied that P did what was necessary in law to effect an express revocation of the power.
The Judge stated that DJ Mort reminded the parties of the overriding objective and set out observations of Mr Justice Peter Jackson in A and B (Court of Protection: Delay and Costs)  EWCOP 48,  COPLR 1, where at paragraphs 10 to 15 he made the following observations:
(a) Few if any of the rule 5 case management strategies were exhibited in these proceedings. There were too many hearings before too many judges, too much documentation, and too many lengthy adjournments with excessive time estimates for hearings.
(b) In these cases, the consequence of delay has been protracted stress – described by one parent as "the human misery" – for the young men and their families, with years being lost while solutions were sought….
(c) Court of Protection cases like these … are almost all capable of being decided quickly and efficiently, as the Rules require.
(d) In short, whether we are spending public or private money, the court and the parties have a duty to ensure that the costs are reasonable.
(e) Another common driver of delay and expense is the search for the ideal solution, leading to decent but imperfect outcomes being rejected.
(f) Likewise, there is a developing practice in these cases of addressing every conceivable legal or factual issue, rather than concentrating on the issues that really need to be resolved.
Attorneys should be careful to step back and look at the bigger picture before engaging in more litigation as they could well be stung with a costs order.
Read the full text of the judgment on Bailii