Application for costs by the OS after a test case relating to DoLS was withdrawn. Application refused.
The applicant was seeking clarification in respect of one significant group of people, namely those who were living at home but subject to care plans, as to whether they satisfied the "acid test" for determining whether a person was being deprived of their liberty. The OS had agreed to act for 2 out of the 4 test cases who had public funding but the application was withdrawn after circumstances rendered 3 of the 4 cases unsuitable for inclusion within the overall test case. By then the OS had incurred legal costs. The OS applied for those costs to be paid by the applicant.
The application was refused - it was reasonable for the applicant to raise and pursue this issue. Given the constraints under which all public bodies operate, the applicant was entirely justified in keeping under review the question of whether to pursue the case. Indeed, it would have been remiss if it had not done so. The fact that the applicant decided to abort the proceedings was a reasonable decision. To use the words in rule 159(2)(b), it was reasonable for the applicant to decide not to contest the issue in the light of the review by the Law Commission whose final report contains recommendations for substantial reform.
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