Departure from the General Rule of Costs in the Court of Protection due to ‘Disorganised Thinking, Planning and Management’

There has been a departure from the general rules on costs within the Court of Protection in the recent case of London Borough of Lambeth v MCS (by her litigation friend) and Anor (2018).

The Official Solicitor (OS) was of the view that all of the costs incurred in respect of the proceedings should be born entirely by the London Borough of Lambeth and the CCG, as it was believed that the proceedings should never have been brought in the first place and also because of the conduct of the parties throughout the  proceedings. Taking this view point, a departure from the general rule of costs would be appropriate.

The background to the matter was that the Protected Party was originally from Columbia and collapsed in a street in the UK in 2014. Following on from the incident, the Protected Party was left with a severe cognitive impairment. She remained in hospital for a significant length of time, despite her requests to return to Columbia, and that it was also deemed in her best interests to return to there under section 4 of the Mental Capacity Act 2005.

An application was made by Lambeth Counsel which resulted in years of hearings and protracted proceedings which not only cost the tax payer in funding the Protected Party’s care and the legal fees, but it meant that the Protected Party was being kept against her wishes and for no good reason. The Judge stated ;

‘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 Protected Party did not leave the UK until 25 January 2018.

Mr Justice Newton thereafter invited parties to submit their submissions on costs at the recent Hearing it was also reported within the Costs Judgement;

‘ The Court is deeply critical of the manner in which this case was handled both before and after the institution of proceedings. It is further troubling that even within the written submissions are many misconceived assertions or contentions as to fact. The proceedings were instigated by P’s RPR in December 2016 because no constructive progress for P was being made. P was unsettled, unable to communicate, frustrated and quite evidently deeply unhappy. A situation which could and should have been avoided.’

Furthermore, the Judge went on to say that he could not ignore the “disorganised thinking, planning and management” which resulted in the Protected Party being detained in the UK for a longer period of time than was necessary.

The Judge ruled that the costs of the proceedings were to be born by the Applicant and the Second Respondent both jointly and severally due to the circumstances of the case being ‘so poor and so extreme’.

This case highlights that even though it is rare, the Court will depart from the general rule if they have good reason to do so and the conduct of the local authority and the delays satisfied section 19.5 (1) (2) of the Court of Protection Rules 2017. It is noteworthy to consider the proceedings as a whole and to ensure that the matter is being dealt with accordingly in order to avoid any unnecessary costs consequences.

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