Standard agreement that public authority pay 50% of OS’s costs in medical treatment cases not binding, says judge
The Court of Protection has ordered an NHS trust to pay 80% of the costs of the Official Solicitor (OS) in seeking permission to undertake serious medical treatment on a protected party because of the delay in going to court.
Mr Justice Poole said the standard agreement that the applicant pay 50% of the OS’s costs was not binding.
Re GH (Mastectomy: Best Interests: Costs)  EWCOP 50 concerned Sandwell & West Birmingham Hospitals NHS Trust’s application to operate on a 52-year-old woman with schizoaffective disorder who was diagnosed with breast cancer in March 2023 but was refusing all treatment.
The application first came before the judge on 26 September, with the surgery slated for the next day. It had to be delayed and on 28 September he ruled that GH did not have capacity to conduct the litigation and make decisions about her treatment. He found it in her best interests to undergo the surgery.
The OS sought her costs on the basis of the trust’s excessive delay in issuing the proceedings – the evidence showed that an application to the Court of Protection was first discussed in May 2023. Poole J said: “In those circumstances it is troubling that the application was made nearly seven months after diagnosis and so shortly before the listed surgery.”
Under the Court of Protection rules, the general rule for proceedings that concern the protected party’s personal welfare is no order for costs – subject to a discretion to order otherwise – but a practice has developed in cases involving serious medical treatment that applicant public bodies voluntarily agree to pay 50% of the OS’s costs.
The OS agreed this at the outset of this case given the urgency but Poole J said: “This is not a formal contract and, I find, it is implicit in the agreement that, depending on the circumstances as the OS later finds them to be or as they develop, the OS may in certain cases seek a costs order for more than 50%.
“That has happened in a number of other cases. I find the trust did not rely to its detriment on the agreement and that the OS is not estopped or otherwise prevented from seeking a greater proportion or indeed the whole of her costs. She will only do so when she considers that the circumstances justify it.”
The judge said the lateness of the application had “undermined the role that the OS should play in the proceedings” because of how little time she was given to deal with it.
It also placed the court under “considerable pressure to find precious time, on a very urgent basis, to hear the application”. The application only became urgent because of the delay in making it.
Further, the delay risked undermining open justice – the application did not appear on the court list – caused disruption to the surgeons, clinicians and staff at the trust, and contributed to a delay in treating GH.
Poole J said: “It must have been clear, if not in early March certainly by early May, that a Court of Protection application may well be required and that, given the nature of GH’s condition and the surgery required, the delays up to that point, and the pressing need for surgery to be performed sooner rather than later, expedition was required.”
The difficulties the trust said it faced did not provide “a reasonable excuse” for the delay. “If a potential witness was ill or on holiday, then urgent steps should have been taken to find another witness who could provide relevant evidence. With each delay the need for urgency increased.”
It was “a clear example of a long and unjustified delay with adverse consequences of the kind that have been recognised in similar previous cases”, Poole J went on.
The trust submitted that the OS would have incurred the costs of the hearing on 28 September in any event and, indeed, had a timely application been made, may well have had to do more work.
The judge noted that a costs order made following misconduct was compensatory, continuing: “Can a costs order be made that is not purely compensatory if the conduct of the paying party does not amount to misconduct? In my judgment, it can.
“The pre-issue conduct of the applicant trust in this case appears to me to be close to that of a party who has been successful in civil litigation but who had unreasonably refused to mediate. In such cases, the courts may take into account the refusal to mediate as being conduct that justifies a departure from the usual order that costs follow the event.
“Such costs orders will not require payment of costs over and above the costs actually incurred, but they are not purely compensatory because it cannot be known with certainty what costs would have been incurred had mediation taken place.”
Again drawing a mediation analogy, he concluded that a delay such as this “may justify a departure from the general rule as to costs even if another party’s costs may not have been avoided had the application been brought timeously”.
He ordered the trust to pay 80% of the OS’s costs to be assessed on the standard basis if not agreed.
“An order for 100% of costs might have been made if the trust’s failings had been egregious and/or the consequences, including the costs consequences, for the OS even more serious.”
Conrad Hallin (instructed by the applicant trust) for the applicant. Claire Watson KC (instructed by the Official Solicitor) for the respondent.