West Hertfordshire Hospitals NHS Trust v AX [2023] EWCOP 11

Application for costs by Official Solicitor arising from an urgent application for medical intervention by the Trust.

The Trust had applied, out of hours, for a declaration of incapacity and an order permitting a Caesarean Section. After hearing evidence from the consultants Morgan J adjourned the application after it became clear that the reason for the urgent application was that AX had reached term, not because of any particular risk. Also proper cross-examination of the psychiatric evidence was not possible as the relevant notes were not in the court bundle. A few days later, the Trust reassessed capacity and found that AX now possessed capacity so they made an application to withdraw which was approved with consent from the OS.

In this application the Official Solicitor was seeking 50% off the costs incurred after the original order, the Trust having already agreed to pay 50%.Vikram Sachdeva KC (sitting as a Deputy High Court Judge) reviews the law on costs in welfare cases including NHS Trust 1 v FG (Practice Note), then makes clear that the Trust had no reason to have brought an urgent application and that the process had been substandard. However at [73] he states 

"Although it is important to follow the guidance in FG, there is no suggestion in the case itself that breach of the guidance automatically justifies a costs order against an applicant. Something more is needed."

He therefore declines the application. Paragraphs [78-82] of his conclusion set out some useful reminders for such applications. 

Read the judgment on Bailii