MR v SR & Anor (application for costs) [2016]

The Applicant, MR made a successful application for her late mother’s Clinically Assisted Nutrition and Hydration (CANH) treatment to be withdrawn and for her to be transferred to a hospice. Thereafter an application for costs was made against the Clinical Commission Group (CCG).

The Judge held that the CCG should pay half of the Applicant’s costs based on the following;

Section 55 (1) of the Mental Capacity Act 2005 – the Court has discretion as to costs.

Section 53 (3) allows for the Courts to determine to whom and to what extent the costs are paid, however it must be noted that the general rule is that where proceedings concern the Protected Party’s welfare, there should be no order as to costs, (Rule 157, Court of Protection Rules 2007).

The Courts can depart from rules 156-158 in exceptional circumstances. The issues would be as follows;

  1. a) Conduct of parties;
  2. b) Whether a party had succeeded in part of his case, even if it has not been wholly   successful; and
  3. c) The role of the public body in the proceedings

Conduct includes;

  1. a) Conduct before, as well as during the proceedings
  2. b) Whether it was reasonable for a party to raise, pursue or contest a particular application;
  3. c) Whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response.

The Official Solicitor criticised the investigation, due to the significant delays on the part of the CCG.

The CCG stated the request to pay two thirds of the Applicant’s costs was ‘manifestly excessive’. The analysis led to a submission that costs were to be awarded against the CCG in respect of unreasonable conduct being established. It was concluded that the CCG were in part responsible for the Applicant’s costs and were therefore liable for the same.

A departure from the no costs rule was applied and the matter was concluded.

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