The Court of Protection has made an order for costs after a woman was forced to bring proceedings herself to seek an order to remove assisted feeding for her mother, who had multiple sclerosis.
Mr Justice Hayden, ruling in MR v SR & Anor (application for costs)  EWCOP 54, said that the actions of Bury Clinical Commissioning Group (CCG) had caused the ultimately successful application by Miranda Rosenbaum and associated costs.
Section 55(1) of the Mental Capacity Act 2005 provides that costs are in the court’s discretion. However, the general rule prescribed by rule 157 of the Court of Protection Rules 2007 is that where the proceedings concern the patient’s welfare, there should be no order as to the costs of the proceedings.
“The case law shows judges to be fastidious in not giving guidance over and above the words of the rules themselves,” Hayden J observed. “In particular, I do not think it helpful to try to put a gloss on rule 159, it provides for ‘departure from the general rule’ where ‘the circumstances so justify’.”
He continued: “In the non-exhaustive factors included within rule 159(1) and (2) are such matters as ‘conduct’ of the parties, ‘manner of response’ to application, whether a party has ‘succeeded’ in whole or in part. Given the extraordinary sensitivity of the issues in this case, these criteria are difficult to apply and do not seem to be wholly apposite in a case which ultimately had an investigative, non-adversarial complexion to it.”
The applicant daughter sought two-thirds of her costs of the proceedings, pointing to delays in the investigation and criticisms made by the Official Solicitor about the actions of the CCG. Ultimately, the family said it should never have been put in a position where they were forced to make the application in the first place.
In response, the CCG argued that Ms Rosenbaum would have incurred roughly the same expenses had she been a respondent rather than an applicant, meaning the judge should only award costs against the CCG where identified instances of ‘unreasonable conduct’ were established.
Hayden J concluded: “Determination of costs is not a precise science in any case; it is an intuitive art reflecting the judge’s feel for the litigation as a whole. In a case such as this, it is almost invidious to dissect the party’s individual reactions at each stage of, and indeed prior to, this highly charged application. I am not prepared to deconstruct the particular instances of the CCG’s un-reasonability; I am, however, satisfied that their responses entailed avoidable delay and, particularly at the procedural stages, a disturbing disregard for national guidelines.
“I consider that the failure to follow guidance and Ms Rosenbaum’s ultimate decision to bring the application herself are inextricably linked. I do not see how it could be sensibly argued to the contrary. Having taken the initiative, I am also satisfied that she encountered delays in response and consequential costs. I do not, however, consider it to be appropriate to burden the CCG with her full costs at a hearing which was protracted because the judge alone considered it necessary to do so. As I have said above, in so many respects, this case was unique.
“Ms Rosenbaum brought a very brave application. It was her efforts that finally brought a proper medical evaluation of her mother’s circumstances. Her instincts from the start were proved to be correct. In the litigation, she achieved what I consider to be the right outcome for her now-late mother. In that process, she will have incurred considerable costs which she should not have had to do.
“Had the trust brought the application itself, she could have reasonably decided, as many families do, to be an unrepresented party, effectively sheltering under the wing of the Official Solicitor or indeed the trust itself. As an applicant, she had no real choice other than to be represented.
“All of this is not easily accommodated within the ambit of rule 159. However, having regard to the case law… I consider that the CCG should, in part, be responsible for the applicant’s costs. I agree that the requested two-thirds is excessive but consider they should be responsible for half her costs.”
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