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Costs update: Court of Protection

London Borough of Lambeth v MCS & Anor [2018] EWCOP 14 and [2018] EWCOP 20 

In a departure from our normal bulletins, offering advice, hints and tips on costs recovery, we thought the above case would be of interest to practitioners and serves as a reminder of the court’s full powers available when making orders for costs.

The general rule in property and affairs matters is that costs will usually be paid from the Protected Party’s (P’s) estate. Conversely, the general rule in Health and Welfare matters is that there will be no order for costs and the parties will have to bear their own costs. The key words here; “general rule”.

Case background

P was a Columbian lady of 55 years of age. Whilst waiting at a bus stop in May 2014, she suddenly collapsed and had it not been for the quick thinking of a passer-by, who swiftly administered CPR (the medical kind not the legal kind), would have likely passed away.

P was admitted to hospital where medical professionals diagnosed she had suffered a narrowing of the arteries to the heart. As a result, P sustained a hypoxic brain injury as a result of oxygen starvation to the brain.

Unfortunately, P displayed all the signs of hypoxic injury, namely severe cognitive impairment with memory problems, speech problems and physical difficulties, which required significant care input. She was admitted to an intensive care unit, but her recovery was slow, and it was not until 1 September 2014 that she was transferred to the Royal Hospital in Putney, where she has received neuro disability treatment. However, P remained here for a period of three years and five months.

The Application

Whilst P was deemed not to have capacity, she had made it abundantly clear, as far back as 17 September 2014 that she wished to return to Columbia where she would have the care and support of a large and concerned extended family. Dates for planned repatriation came and went, but no further concrete progress had been made into making P’s wishes a reality. During the course of the proceedings, P remained in hospital, and felt truly isolated as the care staff were unable to speak Spanish (P was unable to speak English). All she wished was to return home.

An application was made by P’s personal representative for the court to give directions for repatriation to take place. The local authority, “astonishingly” (in the words of Mr Justice Newton) initially resisted the application and contended the proceedings should be dismissed on the basis that P had capacity to make a decision as to where she should live. The position was soon clarified, however, following the Special Visitor’s report, that was undertaken in March 2017.

There followed a number of further hearings and directions made by the court over the course of the next year, seeking to progress the application. However, the local authority missed a number of court deadlines and providing either insufficient or inaccurate information. Further, a number of attendances at court were missed and those of those that were attended, the attendees seldom had the authority to effectively progress matters. The matter was finally resolved on 15 January 2018, whereby the court was able to approve a final order.

P was able to leave the UK on 25 January 2018. The move was reported to have gone very well and there were no health concerns along the way. Indeed, P was reported to have remained calm, restful and slept during the journey. When she arrived in Columbia, P recognised many of her relatives and smiled all over her face. In the words of Mr Justice Newton, a happy end to a tragic story had finally been achieved.

Aftermath

Mr Justice Newton had set out a summary of what he described as unhappy proceedings. He went on to state that, given the conduct of the local authority, the proceedings should not have been necessary and wished to highlight “the very deeply frustrating and disorganised thinking, planning and management within the authority”. He also criticised the local authority for the result, being that a vulnerable adult was kept unnecessarily miserable, against her will and confined in an environment for much longer than was necessary; for approximately three years.

Having recorded these observations, Mr Justice Newton invited the parties’ submissions on costs!

It was the Official Solicitor’s stance (acting for P) that the entirety of the costs should be borne by the local authority. Mr Justice Newton’s judgment on costs was brief; just five paragraphs. He concluded, without hesitation, the circumstances of the case were so poor and extreme (in relation to the instigation of the proceedings and the conduct of the local authority) the costs will be paid by the local authority and the clinical commissioning group on joint and several basis.

Summary and advice

It is always worthwhile remembering that whilst the general rules apply (as cited above) in most cases, the court has full ranging powers when it comes to costs. If the court feels a party has behaved unreasonably, or has not put P’s best interests at the fore, it has the power to award costs against that party, as has happened here.

Whilst we haven’t gone through the entire process of the application here, the applicant was found to have missed a number of deadlines set by the court and provided misleading and accurate information. A number of hearings had not been attended by the applicant, and on occasion when they did attend, they lacked authority to make decisions on behalf of the applicant.

This is quite a clear case of poor conduct throughout the proceedings, but it is well worthwhile practitioners bearing in mind this case as you may be required to make submissions as to costs. Perhaps the other parties’ conduct has been poor, and you may wish to consider why a departure from the usual rules should apply to your case.

As stated, we haven’t gone through the entirety of the case, but if you wish to read more the case itself is available here with the costs ruling available here.

We hope you will have picked up some pointers from this article and as previously mentioned, should you wish to discuss any issues arising or have any queries, please don’t hesitate to contact us.

We’ll be back shortly with more hints and tips on Court of Protection costs recovery and how you can maximise your returns on assessment.

 


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