The Court of Protection has jurisdiction to make decisions regarding the welfare of someone who lacks capacity to make their own decisions, for example as to where they should live and what care they should receive. In such cases, it is rare for a costs order to be made: usually each party pays their own costs as per Part 19, Rule 157 of The Court of Protection Rules 2007 which states the general rule that when proceedings concern the party’s personal welfare there will be no order as to the costs of the proceedings (or that part of the proceedings concerning the party’s welfare).
Such a general rule on costs is in place due to the inquisitorial nature of the Court of Protection which aims to establish the truth through extensive examination of all the evidence, rather than by competing arguments from more than one party.
Nevertheless, Re G  highlighted that, if there is good reason to, occasionally this general rule may be departed from. Poor conduct from one party for instance, such as wasting time through unreasonable delays or ignoring court orders, can result in a costs order being made against that party. Such was the case in the recent judgment of London Borough of Lambeth vs MCS & Another .
The case, handed down on 31 August 2018, concerned a Columbian woman (P) who suffered a cardiac arrest while in the UK in 2014 and was resultantly left with a hypoxic brain injury due to the oxygen starvation to her brain, thus meaning she lacked capacity pursuant to sections 2 and 3 of the Mental Capacity Act 2005. Despite being deemed ready for discharge by the end of 2014, and agreement she would be better off repatriated to Columbia, she was confined in hospital in the UK until January 2018 due to the local authority’s failure to progress this application.
Furthermore, upon an assessment of P’s needs, it was concluded that a Spanish speaking environment was essential for her rehabilitation, and that Spanish staff should be available to her 24 hours a day as she could not speak English. Despite such an official assessment, this was not provided.
Mr Justice Newton’s judgment highlights the poor handling of the repatriation, stating P was ‘kept unnecessarily miserable against her will, confined in an environment for much longer than was necessary’ for an estimated three years, at a cost to the taxpayer of over £2000 per week.
Progression of the Case
Proceedings were initially instigated by P’s RPR (Relevant Person’s Representative) in December 2016 as no constructive progress was being made to relocate her. Such an RPR was necessarily appointed as under the Deprivation of Liberty Safeguards (DOLS), anyone who is subject to a deprivation of liberty must have an RPR appointed on their behalf who will challenge the local authority’s actions.
Initially, and arguably making their conduct somewhat woeful from the outset, the local authority responded to such an application seeking to have the proceedings dismissed on the basis P now had capacity to make decisions herself.
Following this, further poor conduct followed. To name but a few examples: upon directions for the filing of a statement setting out P’s residence options, the local authority formally requested more time to ‘complete investigations’ despite the fact three years had passed since P’s collapse. Subsequently, allegations were made that the Columbian authorities had not been supportive, which turned out to be false; court hearings were not attended or attended by persons who had not obtained delegated financial responsibility; and little or no regard was had to court orders.
Mr Justice Newton argues, in any event, the institution of proceedings was unnecessary and all of this could have been achieved outside of such an application.
As a result of such conduct, it was the Official Solicitor’s contention that the entirety of the costs should be paid by the applicant, London Borough of Lambeth, on the basis that proceedings should never have been brought and were unnecessary, and upon the basis of the applicant’s conduct during the proceedings.
Rule 159 of The Court of Protection Rules 2007 is worth noting here. It states the general rule can be departed from if justified having regard to all the circumstances, including the conduct of the parties. Rule 159(2) then goes on to cite conduct as including that both prior and during the proceedings; whether it was reasonable for a particular issue to be pursued; the manner in which a party has made or responded to an application; and whether any matter contained within was exaggerated.
Arguably the applicant’s conduct falls into each one of these examples: their conduct before and during, and the manner in which the application was responded to as highlighted above; the exaggeration of the matter as shown through the false allegations regarding the Columbian authorities; and the fact such a repatriation should have been completed very shortly after P’s availability for discharge to evidence that the application should not have been necessarily incurred in the first place.
As such, Mr Justice Newton hereby cited these circumstances as ‘so poor and extreme’ that costs should be borne by the Applicant and second Respondent jointly and severally.
Such a ruling should serve as a warning to any Court of Protection advocate that such misconduct can equate to departure from their expected no order as to costs, and could result in some significantly damaging costs orders.
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