Charles J considered an application that part of the applicant’s costs be paid by the Respondents on an indemnity basis. The court ruled that departure from the rule 'no order as to costs' was not justified in this case.
This judgment should be read in conjunction with the reported judgment on this case at  EWCOP 21.
At 5pm on 8 December 2015 the Legal Aid Agency withdrew public funding for the Applicant. Representation continued on a pro bono basis. There was a reciprocal agreement reached with the Respondents that they would therefore not seek the costs of the hearing on 9 December 2015.
The Applicants then sought that the Respondents pay:
a) The costs of the Applicant’s solicitor and QC up to 5pm on 8 December 2015 on an indemnity basis; and
b) An amount as summarily assessed on the indemnity basis to the Access to Justice Foundation to represent the pro bono costs of counsel up to 5pm on 8 December 2015.
There had been a significant increase in the media interest surrounding proceedings. At a hearing on 2 December 2015, Theis J made reporting restrictions which extended to cover the hearing on 9 December 2015. The costs orders are therefore technically split to cover two time periods: 30 November to 2 December 2015, where there were no reporting restrictions, and 2 December to 8 December 2015, where there were reporting restrictions.
At the out of hours hearing, the Respondents advanced the argument that their position had changed regarding costs due to the late service of the Applicant’s evidence.
Additionally, had the Applicant wanted reporting restrictions to continue after the death of the P then the court stated she would have to make a fully evidenced application to the court in any event.
The Respondent’s objection to the out of hours application added little therefore to the Applicant’s costs.
The court held that, as provided by Rule 157 of the Court of Protection Rules, there will be no order for costs.
Charles J concluded that to award a costs order against the Respondents based on their conduct would be “an unprincipled and an arbitrary approach to expressing disapproval of, or punishing, that conduct” because others who were criticised for their conduct did not participate in proceedings.
Charles J highlighted that his judgment should be taken into account in future cases relating to the public funding of a family member of the subject of proceedings in the Court of Protection.
Whilst clear cut in his decision, Charles J has however left open the possibility that, in future cases, equivalent conduct could properly be taken into account to found either an order for costs or the basis of their assessment. Therefore, it will fall to each case to be assessed on their facts, rather than necessarily relying solely on this judgment.
Read the full text of the judgment on Bailii
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