Background
An application for costs was made by the Official Solicitor following an ineffective hearing about whether the Protected Party had sufficient capacity to use social media.
The hearing was due to take place in the midst of proceedings concerning a Protected Party, a young woman with a diagnosis of a mild learning disability and ADHD which was exacerbated by childhood trauma. She had gone missing over Christmas 2021 and there was an agreement that she lacked the necessary capacity to make decisions regarding her residence and care so interim orders were made for the Local Authority. There was a disagreement between the Local Authority and the Official Solicitor over the Protected Party’s capacity to use social media and the Local Authority wanted to restrict the Protected Party’s access to social media.
A hearing was to be held on 3 March 2022 and the social worker’s statement was due to be served before noon on 25 February 2022 but was instead served after 5 pm that day. The Local Authority’s position statement was due at 4pm on Monday 28 February 2022 and the timetable was established as such so that the social worker and the legal team at the Local Authority should have been ascertaining their position but this did not happen. Instead on 1 March 2022, the Official Solicitor’s statement was served on the Local Authority in compliance with the directions, but Counsel for the Local Authority was instructed the next day to draft a position statement and appear at a hearing. That document was dated 2 March 2022 and was sent to the Court before 5pm on 2 March 2022. That position statement conceded that there was insufficient evidence to rebut the assumption of the Protected Party’s capacity to make decisions about accessing the internet and social media.
In personal welfare cases the ‘general rule’ as to costs is that “there will be no Order as to the costs of the proceedings.”: COPR’2017 r 19.3. However, the conduct of the parties in the proceedings could lead to an Order being made.
COPR 19.5(2) states:
The conduct of the parties includes
(a) conduct before, as well as during, the proceedings;
(b) whether it was reasonable for a party to raise, pursue or contest a particular matter;
(c) the manner in which a party has made or responded to an application or a particular issue;
(d) whether a party who has succeeded in that party’s application or response to an application, in whole or in part, exaggerated any matter contained in the application or response; and
(e) any failure by a party to comply with a rule, practice direction or court order.
Findings
The matter that led to the hearing of 3 March 2022 was whether the Protected Party had capacity to make decisions about social media access and, if she did not, whether it was in her best interests for restrictions or a prohibition to be imposed. The Official Solicitor’s position was clear and the Local Authority was aware that this was the subject of the hearing. It was important to both parties, but particularly the Local Authority who sought to restrict her social media use, to ensure that they conducted themselves in accordance with the directions made by the Court and consider the strength of their case continually. A failure to do so by either side could have led to an unnecessary expenditure of time and money.
The Judge ruled that the Local Authority should have known by 25 February 2022 that their case was weak. The failure to serve an updated paginated bundle by 4 pm on 28 February pointed to a lack of time. The social worker’s witness statement was also served late. Had matters proceeded as they should, by Monday 28 February 2022, the Local Authority should have had a clear position, and that should have been the subject of their position statement that should have been served by 4 pm that afternoon. It was not. Instead, the Official Solicitor had to provide a position statement responding to the Local Authority’s unknown case. By the time the Local Authority instructed Counsel, the deadline for their position statement had passed. At no stage did the Local Authority seek an extension to the timetable, or to vacate the hearing on 3 March.
The Judge was satisfied to depart from the general rule as a result of the failings of the Local Authority as their conduct had fallen below a proper standard. It was found to be unreasonable for the Local Authority to continue to pursue the specific matters in relation to social media restrictions, when the capacity and best interests evidence was weak. There was a failure to comply with the directions Order that had been made by the court with the parties’ general agreement.
The Judge when deciding what Order was to be made considered that some directions would have had to be made once it was clear that the hearing listed was to be ineffective. Time would have had to be incurred in formulating an Order. However, none of that was likely to have involved a hearing and if it had, it would not have been all day or have needed to be attended.
Decision
The Local Authority was ordered to pay 85% of the Costs incurred by the Official Solicitor of and incidental to the hearing on 3 March 2022, not including the cost of the judicial visit, which would not have occurred.
If the parties could not come to an agreement on a liquidated sum, the Judge directed that the Official Solicitor submit to the Court within 14 days, a costs schedule and the Local Authority would have 7 days to contest the same. The costs would have been assessed after that.
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