The Application for permission to Deprive the Protected Party (a minor) of his Liberty in circumstances where there was no secure accommodation available.

This was an application by a Local Authority in relation to a young boy; the Protected Party, who is now 13. He previously lived with his grandmother under a Special Guardianship Order, but became the subject of a full care Order in December 2015. The Protected Party had displayed a desperate history and a catalogue of very seriously uncontrolled behaviour, damaging to both himself and others. As a result, he had been placed in no less than six different residential settings. Each setting ultimately broke down, sometimes very rapidly, as the staff there were simply unable to manage his behaviour and keep him safe.

The Local Authority would have wished by June 2017 to place the Protected Party in an approved secure accommodation placement. Such placements are very scarce and they were unable to find one. So, they hoped to place him in a unit which was not an approved secure accommodation at X. Their plan was, however, that within X he should, if necessary, be subject to considerable restraint, including physical restraint, in order to keep him safe and prevent him from absconding, as he had done on occasions in the past.

Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as Secure Accommodation Orders. Such Orders may be made and, indeed, frequently are made by Courts, including Courts composed of lay magistrates. It is not necessary to apply to the High Court for a Secure Accommodation Order, however, as no approved secure accommodation was available, the Local Authority required the authorisation of a Court for the inevitable Deprivation of Liberty of the Protected Party. Mr Justice Holman expressed his concern over the way in which Applications of this sort were handled, saying that “the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children. This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division.” The Judge Ordered that the child now be joined as a party to these proceedings and Cafcass must allocate a Guardian to act on his behalf. A further hearing was ordered to be fixed in one month. It was stated that the Guardian must file and serve an interim report shortly before that hearing. Further, in view of the gravity of the subject matter and the age of the child, the Judge Ordered that he must be enabled to attend the hearing if he expresses a wish to do so unless the Guardian thought it would be damaging to the health, wellbeing or emotional stability of the child to do so. In his view it was very important that in these situations, which in plain language involve a child being ‘locked up’, the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so.

If you have any queries, please do not hesitate to contact Georgia Clarke (georgia.clarke@clarionsolicitors.com) or the team at COPCosts@clarionsolicitors.com.

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Part 36 offers, the basis of assessment, and knowing your expert

It is well known within the costs profession that there is some tension in the provisions of CPR 36.17, which deals with the costs consequences following judgment.

When a Claimant beats their own Part 36 offer, CPR 36.17 (4) provides that the Claimant is entitled to: interest not exceeding 10% above base rate from the date of expiry of the offer on the whole or part of any sum of money awarded, their costs on the indemnity basis from the date of expiry of their offer, interest on those costs, again, at a rate not exceeding 10% above base rate, and a prescribed percentage uplift limited to a maximum of £75,000 (10% on awards less than £500,000, and for awards more than £500,000, 10% on the first £500,000 and 5% of any amount above that figure thereafter).

However, for the Defendant, the rules are not quite so generous. CPR 36.17 (3) provides that the Defendant is entitled to costs from the date on which the relevant period expired, and interest on those costs. There’s no mention of indemnity basis costs, and no mention of any enhanced interest.

The recent costs decision in the case The Governors and Company of the Bank of Ireland (1) and Bank of Ireland (UK) PLC (2) v Watts Group PLC [2017] looked at this point closely, with the Defendant trying to persuade the Hon. Mr Justice Coulson that they should be awarded their costs on the indemnity basis following expiry of their first Part 36 offer, which they beat at trial, and which expired on 23 October 2015 (the parties had previously agreed that the Defendant should recover interest at 2% above base rate for the relevant period).

The Defendant relied on three main arguments; that the claim was hopeless and should never have been brought, that the Defendant had beaten their own Part 36 offer, and that the Claimant’s expert was heavily criticised by the trial judge.

The Hon. Mr Justice Coulson considered the principles that he had set out in Elvanite Full Circle Limited v Amec Earth and Environmental (UK) Limited [2013] EWHC 1643 (TCC), and summarised that “indemnity costs are appropriate only where the conduct of a paying party is unreasonable “to a high degree”. ‘Unreasonable’ in this context does not mean merely wrong or misguided in hindsight”. He went on to say that “The pursuit of a weak claim will not usually, on its own, justify an order for indemnity costs, provided that the claim was at least arguable”

In this case, he did not regard the case as being hopeless from the start, and he stated that the claim was, at least in part, supported by expert evidence and detailed witness statements.

He recognised that if the Claimant had beaten their own Part 36 offer then, in accordance with CPR 36.17(4)(b), they would have automatically been entitled to indemnity basis costs, however, he stated that whilst the rules were misaligned and considered unjustified by some, it remained the law that the same rules did not apply to successful Defendants.

He did, however, allow costs on the indemnity basis in relation to one discrete aspect of the case – the expert’s conduct, and he relied on the decisions of Balmoral v Borealis [2006] and Williams v Jervis [2009] in doing so. He considered that the expert’s conduct should be reflected in the costs order, but he did not consider that an order for indemnity basis costs in their entirety was appropriate. He recognised that the expert’s inadequacies had already been a factor in the Claimant losing at trial, and therefore “to order indemnity costs as well would be penalising the Bank twice over for the conduct of their independent expert”. He ordered that costs of the Defendant expert should be assessed on the indemnity basis, as well as costs of and occasioned by the oral evidence given by the Claimant’s expert at trial.

The Claimant paid a heavy price for relying on an expert who had never given oral evidence at a trial. However, the conduct of the expert did not persuade the Court to allow indemnity basis costs throughout. Nor did the fact that the Defendant had beaten their own Part 36 offer. And whilst the Claimant bank accepted that they lost the litigation “badly”, they denied that the claim was unreasonably brought and they warned about the dangers of applying hindsight to such decisions.

It, therefore, seems that there is a high bar to clear in persuading the judge to award indemnity basis costs in a claim where the Defendant has successfully beaten their own Part 36 offer. Like in this case, a paying party would need to consider and rely upon the factors listed in CPR 44.2 (4), in order to formulate a case that would persuade a judge to make such an award in the circumstances.

If you have any questions or queries in relation this blog or legal costs in general please contact Joanne Chase (joanne.chase@clarionsolicitors.com and 0113 336 3327) or the Clarion Costs Team on 0113 246 0622.

Can a family member or care worker be appointed as a Representative or Litigation Friend if they are partly responsible for constituting a Deprivation of Liberty?

SCC v MSA & Another (2017) EWCOP 18

This case looked at the issues of where a Protected Party’s mother should act as his Rule 3A representative, in light of the fact that she was the person responsible for implementing a restrictive care regime that constituted a deprivation of liberty.

Background

The SCCG commissioned a care package to MSA who was a young adult with severe learning disabilities and was deprived of his liberty at his family home. The Court had previously authorised that it was in MSA’s best interests to reside at home and receive the  care package. MSA was recorded as;

“unable to communicate or mobilise independently, is frequently strapped into his wheelchair, is kept for some of the time in a padded room at his home with a closed door that he cannot open, is highly resistive to personal care interventions so that physical restraint is required, and does not have external carers in the home.”

The issue that arose during the proceedings, was whether MSA’s mother, JA could or should act as his 3A Representative. The Official Solicitor (OS) submitted at a hearing on 23 March 2017, that it would be inappropriate for MSA’s representative in these proceedings and any future proceedings to be the person responsible for implementing a restrictive care regime that constituted a deprivation of liberty, where the arrangements surpassed 24 hour supervision.

Written submissions were filed by both parties and the Court agreed to consider the appropriateness of JA acting as his litigation friend. It is worth noting here, that JA did not wish to be appointed, the OS had raised the issue and guidance on the matter was sought.

Court of Protection Rules 2007

Rule 3A, requires the Court to consider in each case how best to ensure the Protected Party’s participation in proceedings was assured.

Rule 3A(2)(c) ” P’s participation should be secured by the appointment of a representative whose function shall provide the Court with information as to the matters set out in s4(6) of the Act and discharge functions as the Court may direct.

Rule 147 states “A person may act as an accredited legal representative or representative for P, if that person can fairly and competently discharge his or her functions on behalf of P.”

Rule 148B provides the Court with the power to prevent a person from acting  or terminate an appointment of a person as a litigation friend

Rule 140(1) states that a person may act as a litigation friend for P if that person,

  1. A) fairly and competently conduct proceedings on behalf of that person, and
  2. B) has no interests adverse to those of that person

The OS stated that it would not be appropriate to appoint a family member who who supported the deprivation of the Protected Party’s liberty as being in his best interests, as it would be difficult for them to challenge the deprivation due to a conflict of interest. Especially in this case, as the Protected Party was locked in a padded room at times and had to be physically restrained in a wheelchair.

The CCG argued that JA could undertake the role as she was engaged with statutory services and care providers and had a history of acting as the Protected Party’s advocate. They also stated, that there was no rule which prohibited a family member from acting.

District Judge Bellamy stated the following would need to be considered;

  1. a) Whether or not a family member or friend who is responsible in part for implementing a restrictive care arrangement is appropriate to be representative or litigation friend is fact and case specific
  2. b)The Court will have close regard to the relationship between the family member and the Protected Party
  3. c)The conduct, if any of the family member and any available evidence that he or she has acted otherwise in accordance with Rule 140(1) or Rule 147
  4. d)The Court must consider the nature of the restrictive care package and the role that the family member would play in the regime

An agreement with the OS in terms of where a family member is responsible for providing care that includes restrictive physical interventions, the Court should take great care in exercising its discretion as regard to the Protected Party’s representation in proceedings pursuant to Rule 3A. However, it would go no further than that and if a family member who was so involved put themselves forward to act as a representative or litigation friend, providing that all circumstances were scrutinised, there could be no blanket objection in principle, to undertake the role.

The Court must be satisfied that the representative can,

1.i) Elicit P’s wishes and feelings in accordance with s4(6) of the MCA known to the Court without causing any unnecessary distress to the Protected Party

2. ii) Critically examine from the Protected Party’s perspective their best interests, the pros and cons of the care package and whether it was the least restrictive option

3.iii) Review the implementation of the care package

Therefore, it was determined that providing the Protected Party’s Rights under Article 5 were adequately protected and the Court were satisfied, the role could be undertaken by a family member. In my opinion, this appears reasonable, as the family member may actually be the best person to represent the Protected Party as they have a personal connection and will more often than not understand from the Protected Party’s point of view as to what would be in their best interests.

In this case, as JA did not want to act as litigation friend, the OS would continue with the appointment.

If you require any further information, please contact; Danielle.walker@clarionsolicitors.com

 

The Liberty Protection Safeguards and the repeal of DoLS

The Deprivation of Liberty Safeguards (DoLS), the framework which provides authorisation of restrictions of an individual’s freedom, look set to be repealed and replaced by a new scheme called the ‘Liberty Protection Safeguards’.

A House of Commons Library briefing paper has raised the actions recommended by the Law Commission’s report, published in March 2017, advocating the urgent repeal of the controversial rules that were introduced into the Mental Capacity Act in 2009.

DoLS provide a six-tiered statutory framework for the approval of a deprivation in situations where a person lacks mental capacity to consent to their care arrangements, and it is deemed that it is in the best interests of the patient to restrict their freedom.

A Supreme Court judgement in the case of P V Cheshire West & Cheshire Council [2014] changed the definition of a deprivation of liberty, thus increasing the volume of individuals determined to have their liberty deprived. As a consequence of this judgement, the number of DoLS applications has increased ten-fold, the implications and repercussions of which have been significant for social care practitioners and local authorities.

The new Liberty Protection Safeguards intend to ‘streamline the process for assessing whether a deprivation of liberty is necessary’ as well as increasing the efficiency of the authorisation process. The new safeguards would also apply to a broader group of people than those currently covered by DoLS, which only apply to deprivations in care homes and hospitals. Furthermore, 16 and 17-year-olds will now be protected under the new legislation.

Best Interests Assessors are expected to be replaced by an ‘Approved Mental Capacity Professional’ (AMCP) and the requirement for a best interests assessment in every case will be removed, with the focus of the thorough assessments shifted to only the more ‘serious’ cases whereby the care arrangements are contrary to the wishes of the patient.

When a possible deprivation is identified, the responsible body (usually the local authority) will be required to arrange a medical and capacity assessment, before considering whether the proposed care placement is necessary and proportionate. The case will be then considered by an ‘independent reviewer’, who is not involved in the patient’s care. If the conditions are considered to be met, the deprivation will be approved; if there are concerns regarding the placement however, the case will be referred to an AMCP.

The Law Commission report states that the new scheme will offer ‘further protection to people who object to their proposed placement’, while increasing the efficiency of the process and striking a ‘proportionate balance between responding efficiently to the volume of cases requiring authorisation since Cheshire West and giving proper safeguards to people whose objections are too easily over-ruled under the current law.’

The Government is due to publish its response to the recommendations.

If you have any queries, please do not hesitate to contact Ethan Bradley (ethan.bradley@clarionsolicitors.com) or the team at COPCosts@clarionsolicitors.com.

 

Deprivation of Liberty Proceedings on behalf of a minor [2017] EWHC 2458 (Fam)

The Local Authority made an Application for permission to deprive the Protected Party (a minor) where there was no secure accommodation available.

The Protected Party was a 13 year old child and had a background of very serious uncontrollable behaviour which had resulted in damage to himself and others. As a result, he had been placed in over six different accommodations for his own and others’ safety. There were a number of occasions where the staff were unable to manage his behaviour or keep themselves and the Protected Party safe.

The Local Authority had repeatedly expressed their wishes to place the Protected Party in an approved secure placement, however these were rare and they were unable to find a suitable home. As a result, they had hoped it would have been possible to place him in a unit which was not deemed an approved secure accommodation. A plan was put in place that meant the Protected Party would stay at the accommodation and if necessary, be subject to considerable restraint, including physical restraint, solely for the purpose of keeping him safe.

Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as Secure Accommodation Orders. Such Orders may be made and, indeed, frequently are made by Courts. It is not necessary to apply to the High Court for a Secure Accommodation Order, however, as there was no approved secure accommodation available, the Local Authority required the authorisation from a Court for the Deprivation of Liberty that the Protected Party would be subjected to.

Mr Justice Holman delivered his concern over the way in which applications of this kind were handled, saying that “the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children. This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division.”

The Judge ordered that the child now be joined as a party to these proceedings and a guardian must be appointed to act on his behalf. A further hearing was fixed for a months time, as the Judge was concerned the Protected Party had been deprived of his liberty for the past 3 months. The Judge advised further “in view of the gravity of the subject matter and the age of the child, I propose to order that he must be enabled to attend the hearing if he expresses a wish to do so unless the guardian states that in his opinion it would be damaging to the health, wellbeing or emotional stability of the child to do so. In my view it is very important that ordinarily in these situations, which in plain language involve a child being ‘locked up’, the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so. But subject to that exception, if a child of sufficient age, which includes a child of this or any older age, wishes to attend a hearing of this kind, then in my view he must be enabled to do so.”

If you have any queries, please do not hesitate to contact Georgia Clarke or the team at COPCosts@clarionsolicitors.com

Forgot to secure a payment on account of costs at the final hearing? All may not be lost…

This brief judgment concerned whether or not a party could seek an order for a payment on account of costs after a costs award had been ordered, but before detailed assessment proceedings had begun.

In Ashman v Thomas [2016] EWHC 1810 (Ch), judgment had been given extempore on preliminary issues on 21 June 2016. Following the hearing, and as part of seeking to agree terms of the order, the defendant sought a payment on account of costs. On 23 June 2016, 2 days after the hearing, the defendant served a costs schedule totalling circa. £48,650. The claimant disputed the defendant’s entitlement to a payment on account on the basis they had failed to make the request at the time the order was made. The claimant relied on there being no provision within the rules for the defendant to now seek a payment on account of costs until they had commenced detailed assessment proceedings and sought an interim costs certificate under CPR 44.16(1).

In addition, the claimant alleged that the defendant was in breach of CPR 44PD 9.5 (4)(b), as they had failed to serve a costs schedule 24 hours before the hearing. Master Matthews dismissed this point on the basis that PD 9.5 (4)(b) concerned summary assessment of costs and was not applicable to detailed assessment.

The main issue between the parties was whether an order could be made to include a term for a payment on account of costs when that request had not been made at the actual hearing.

Master Matthews considered CPR 44.2(8):

“Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so”,

and decided that there was good reason to consider the defendant’s request on the basis that it had been made after the hearing but before the order was sealed. The court retains power to alter its judgment or order until it is perfected and sealed in accordance with Re Barrell Enterprises [1973] 1 WLR 19, CA.

The defendant sought a payment on account of costs in the sum of £20,000. The claimant challenged the statement of costs on several grounds, including excessive hourly rates, signature of the statement by the firm and not individual solicitor, and failure to identify which costs the statement related to.

Master Matthews accepted that the statement was restricted to preliminary issues only, and he was also not concerned with the signature challenge on the basis that the matter was not subject to a summary assessment.

He was, however, in agreement with the claimant that the hourly rates were excessive. Furthermore, he believed that some of the work undertaken by the Grade A Solicitor could have been delegated to a more junior fee earner. He stressed that “the paying party should not be asked to pay more than is reasonable and proportionate”.

Taking the above into consideration, Master Matthews agreed that a payment on account of costs was justified, however, given the excessive level of costs claimed, the award was limited to £17,500, to be paid within 14 days.

This short judgment contains several reminders about good practice. The filing of a statement of costs before any hearing ensures that the issue of a payment on account of costs can be dealt with as soon as a costs award has been made, as per CPR 44.2(8).

However, if the receiving party did not secure an order for a payment on account of costs at the time the costs award was made, they still have an opportunity to seek inclusion within the order prior to it being sealed by the Court. A statement of costs is likely to prove essential in quantifying the amount of the payment on account to be made.

If you have any questions or queries in relation this blog or legal costs in general please contact Joanne Chase (joanne.chase@clarionsolicitors.com and 0113 336 3327) or the Clarion Costs Team on 0113 246 0622.

The OPG105 Form – An Update for Professional Deputies

All professional Deputies should be aware of the OPG105 form (introduced in March 2016) which is required for submission alongside the OPG102 Deputyship Report on an annual basis to the Office of the Public Guardian in general management cases.

When submitting General Management Bills for Assessment to the Senior Courts Costs Office in relation to Deputyship matters, they are now requesting the above information. You may or may not have received notice from the Court stating the following:

“For the attention of Financial Deputies: Following the introduction of the OPG105 form in March 2016, please ensure when submitting general management bills for assessment, copies of the Annual Report/Accounts and Form OPG105 are attached to your bill to be assessed. Thank you for your co-operation in this matter.”

Following the Professional Deputy Costs Good Practice Guidance issued by the OPG and the SCCO in July 2016, it was requested that these documents were filed alongside the Bill of Costs for assessment by the Deputy. It’s apparent that very few Deputies are following this procedure and as such, the Court appear to be reinforcing the message. The guidance states:

“When submitting their bill for assessment, professional Deputies should enclose a copy of the fees estimate previously submitted to OPG. Estimates are not binding on the detailed assessment. If the costs claimed in the bill are 20% or more above the estimate it will also be necessary to provide reasons to the SCCO as to why there is a difference.

Should there be changes in the client’s circumstances during the year (and therefore costs to their estate), the Deputy should alert OPG if the fees are likely to be 20% or more than the submitted estimate. However, it will be for the SCCO to assess the professional Deputy’s costs at the end of the reporting year and for the Deputy to explain any inconsistencies.”

The guidance can be found here:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/538901/19_07_16_Professional_deputy_costs__FINAL.pdf

If you have any queries in respect of the above information, please do not hesitate to contact Stephanie Kaye, Head of the Court of Protection Costs Team at Clarion Solicitors, at Stephanie.kaye@clarionsolicitors.com or alternatively, please call 0113 336 3402.