Court of Protection makes rare costs order in “extreme” case

The Court of Protection has taken the rare step of awarding costs against a clinical commissioning group (CCG) and local authority over the way they instituted and conducted proceedings involving a Colombian woman who was in their care.

Mr Justice Newton said that the woman – who had suffered a heart attack in May 2014, leading to hypoxic brain injury, but was not repatriated to Colombia until January 2018 – had been at the mercy of “disorganised, muddled and unfocused decision making, and what has at times verged on arrogance”.

He said: “P [the protected party] has just had to wait. It should be remembered that P had been kept here against her wishes, at a cost to the taxpayer of over £2,000 per week. If the authority had done what it should have done in a timely professional manner, not only could they have saved themselves over £100,000 a year, and saved the cost to the taxpayer of these protracted High Court proceedings, they could have avoided P the years of misery from being kept a prisoner here, against her will.”

The court found that, by the end of 2014 or early 2015 at the latest, P was ready for discharge and a return to her home country, and that her subsequent care suffered by the failure to provide any Spanish-speaking nurses or other carers.

The Official Solicitor submitted that the entirety of the costs of the proceedings should be borne by the London Borough of Lambeth and the Lambeth CCG on the basis that the proceedings should never have been brought and then their conduct once commenced.

Newton J said: “Proceedings brought in the Court of Protection almost never attract an enquiry into the issue of costs, essentially since they are inquisitional in nature. The general costs principles do not sit easily within the parameters of the court’s considerations.

“However, as the President recognised in Re G [2014] EW COP 5, there will occasionally be cases but there must be good reason before the court will contemplate departing from the general rule. For example, an order for costs was made in Re SW [2017] EW COP 7 where the application was ‘scarcely coherent… totally without merit… misconceived and vexatious’.

“These proceedings would not necessarily be categorised in that way, but what if they were or should have been fundamentally unnecessary, that is to say they should never have been brought? Or what if the conduct of the proceedings been so poor, so incompetent that not only did they take much longer than they should (thus unnecessarily necessitating P remaining for so very much longer in difficult circumstances) and requiring many extra unnecessary hearings? In those circumstances, is the court not able to mark its disapproval by the consideration and award of costs?”

His answer to this rhetorical question was a resounding yes. He found the submission that the CCG was “throughout commendably assiduous” in seeking P’s return to Colombia “about as misplaced and offensive a submission as could possibly be contemplated”.

Newton J ruled: “Without hesitation, I conclude that the circumstances of this case are so poor and so extreme (both in relation to institution of proceedings and their subsequent conduct) that I should make an order that the costs of the proceedings should be borne by the [council and CCG].”

Catherine Rowlands (instructed by Legal Team, London Borough of Lambeth) for the applicant and second respondent; Sophia Roper (instructed by Leigh Day) for the first respondent.

 

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Costs News
Published date
06 Sep 2018

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