Given the general rule in the Court of Protection (Health and Welfare - no order as to costs unless significant litigation conduct has been proved) how should costs be considered in this particular case?
These were lengthy proceedings relating to M which had resulted in a fact-finding hearing lasting some 20 days concerning serious allegations against M’s parents and mother, in particular (reported as  EWCOP 33).
Ongoing risk issues arose as to M’s place of residence and contact. The decisions of Baker J had been subject to an appeal at the Court of Appeal which rejected the appeal conclusively.
The court considered the powers of the Court of Protection in relation to costs given the background to this matter and noted that in the Court of Protection as well as family courts the general rule when making decisions about the welfare of incapacitated adult children is to make no order costs. However, the court retains a residual power which it exercises occasionally where one party has been found of conduct that can be described as “significantly unreasonable”. Whilst neither the Local Authority or the Official Solicitor made an application for costs on that ground it may have been open to them to do so in this case.
The Local Authority confined their application for a one third contribution of the costs incurred in the instruction of five experts during the course of the fact-finding hearing, one of whom had originally been instructed by E and A as their expert but was subsequently taken over by the Official Solicitor and the Local Authority. The total sum sought against E and A in respect of those experts’ costs was £13,000.
E and A sought costs against the Local Authority for a contribution for the calling in of a bond and for losses incurred as a result of actions of the Local Authority as interim deputy having raised allegations about the conduct of the Local Authority as deputy. The Local Authority claimed that calling in the bond related to a complaint arising as to how E conducted herself when acting as deputy. The court noted these were relatively small claims. The court, in respect of those applications, transferred the matter to be dealt with by the senior Judge whom the court noted regularly dealt with such allegations of misconduct by deputies.
Furthermore, there was a claim by E and A in respect of £4,000 of travelling costs incurred following the removal of M from their care and the placing of M in a residential unit some distance from their home for a period of some six months. The court noted the decision to move was taken by the court and this was not subject to an appeal in that regard. The court found the claim for a contribution to travel costs to be misconceived. “M had to be removed because he was at risk; he was at risk because of his mother's behaviour. In those circumstances, any claim for costs for travel is without merit“ (para 10 of the judgment).
E and A sought a substantial order against the local authority of some £78,000, comprising £67,000 for advisers’ fees which were not particularised for the court and £11,000 for experts. The father told the court that he had retired with a lump sum in excess of £120,000 all of which is now gone and he also had to take a mortgage on his house which was previously mortgage free. However, at paragraph 13, the court said of their application for costs: “the fault lies entirely with themselves, as I indicated in my fact-finding judgment. So E and A’s application for costs is wholly misconceived and I reject it”.
In relation to the Local Authority’s application for a contribution of some £13,000 towards the cost of the instructed experts the court ordered that E and A contribute one third of the cost of two jointly instructed experts rather than the five as sought by the Local Authority.
A further application for wasted costs by E and A, seemingly against the professionals who represented the Local Authority and Official Solicitor, was considered by the court to be “hopeless and totally without merit” (para 16).
This is an interesting case to both practitioners and those involved in the Court of Protection, whether advisers or the parties, in that the court will not sanction wholly unmeritorious applications. It is to be noted that this case is unusual if not exceptional given the level of acrimony and given the time that the court has had to be involved in these very lengthy proceedings.
Whilst the Local Authority’s application related to a contribution of one third of the instruction of five experts amounting to some £13,000, the court ordered a contribution of only two of those experts - the amount was not quantified in the judgment but presumably it was less than the £13,000 sought.
It would have been interesting to see the court’s approach had the Local Authority and the Official Solicitor made an application for costs against E and A given the factual background of this matter and the courts willingness to entertain an application for costs had their conduct been described as “significantly unreasonable” which, when reading this judgment together with the earlier judgment, probably would have come within that sphere.
Read the full text of the judgment on Bailii