Appeal by the Official Solicitor from a decision by the President in respect of a costs order made applying rules 159 COPA 2007.
Whether such an order was proportionate given the stance taken by Associated Newspapers. The costs order made by the President awarded costs to be paid by Associated Newspapers as to 30% of G’s costs and 30% of London Borough of Redbridge.
Who can be joined as a party to proceedings in the Court of Protection - costs implications.
The public importance of the media.
G was aged 94 and was continuing to reside in her own property when the local authority issued proceedings under the inherent jurisdiction of the High Court to safeguard G by removing two persons who were said to provide care for G in her home. A reporting restriction order was made by Russell J which permits reporting but prohibits the identification of G and those persons. The local authority applied within those proceedings to prevent the two named persons from taking G to “protests and meetings” with the media. That case went before Cobb J who made interim declarations that there was reason to believe that G lacked capacity to make decisions about having contact with the media and that it was not in G’s best interest to have that contact – this was reported as London Borough of Redbridge v G and Ors  EWHC 959 (COP).
However at the time of that hearing G had met representatives of the media to discuss her situation and there was conflicting evidence before the court about her wishes and feelings. The Official Solicitor and the local authority sought orders restricting contact between G and media. The Official Solicitor made a proposal that the media be required to make an application to the court if there was to be any further communication by them with G. Cobb J rightly rejected that proposal as it was creating a reverse obligation on the media and as he said that it would place “an improper burden on the press “.
ANL attended the hearing anticipating an injunction might be made against the media and indicated that they might wish to vary the reporting restriction order made by Russell J, and so the court directed the timing of the filing of such an application to be heard at an adjourned hearing on 2nd May 2014. However the solicitors acting for G as agents for the Official Solicitor wrote twice in April 2014 to ANL seeking an assurance from them that unnamed journalists would refrain from making social visits to G and in their letters they contended that the terms of Cobb J’s order prohibited such visits.
Whilst ANL then made an application to be joined as a party to the Court of Protection proceedings they did not apply to vary the reporting restrictions order. The Official Solicitor wrote to ANL to say that the application was misconceived and that costs would be an issue. On 1 May 2014 the President dismissed ANL’s application to be joined as a party (reported as Re-G (adult), London Borough of Redbridge v G and others (Associated Newspapers Ltd, interested party )  EWCOP 1361.
Following his decision rejecting ANL’s application to be joined as a party the President invited written submissions on costs which was then reported as In the matter of G (Adult)  EWCOP 5. He considered the rules, namely 157 and 159, as the application was made within personal welfare proceedings for G in the Court of Protection. He considered it was right to depart from the general rule in rule 157 because the application was misconceived, but he then went on to make a proportionate order because of the importance of the issues, the stance adopted prior to the application by the Official Solicitor and the fact that ANL was faced with two costs bills from two public bodies, namely the Official Solicitor and the local authority.
The Court of Appeal confirmed the President’s view that there was no legal basis for the Official Solicitor’s contention that ANL were prevented from visiting G. They agreed that the letters were correctly described as having a “chilling effect” and approved his description of the letters as “a mindset…which fails to recognise the vitally important role of the media and the valuable service the media provides”. The Court of Appeal found that the Official Solicitor could not gainsay the assertion made before the court that the letters triggered ANL’s application. However, though the application was misconceived, it was a means to an end and one of the ends achieved was the President’s confirmation that the terms of Cobb J’s order could not be construed to limit social visits to G. The Court of Appeal considered that the power to award costs is contained in section 55 (1) of the 2005 act and by section 53 (3) the court has “full power to determine by whom and to what extent the costs are to be paid”.
Overall the Court of Appeal said at paragraph 23 “it was reasonable for the media to raise an issue of public importance and the Official Solicitor failed to understand that issue. The letters written on behalf of the Official Solicitor were wrong and that was conduct before the application and within the proceedings… ANL’s response was wholly misconceived [ANL’s application to be joined as a party to the proceedings] and that was conduct within the proceedings”.
Succinctly put by the Court of Appeal; “In my judgment the Official Solicitor succeeded on the application i.e. he won a battle but lost a point of principle. ANL lost the application but achieved clarity in relation to a point of principle”.
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