The Court of Protection has determined that it should not make a costs order against a Protected Party (P) who was the subject of a failed application by a professional Deputy to be appointed to handle his affairs.

This decision offers some important guidance on costs in Deputyship Applications, particularly when an application ultimately fails because the person concerned is found to have capacity.

Background

• A professional Deputy applied to be appointed as property and affairs Deputy for a vulnerable adult. However, a section 49 report later confirmed that P did, in fact, have capacity.
• P sustained frontal lobe damage more than 20 years ago following an assault, which has a mild impact on his executive functioning, compounded by excessive alcohol use. The Deputy made a COP1 application seeking appointment as a professional deputy for P after a referral by City of York Council, who believed P lacked capacity to manage his affairs. But a later medical report found he had the capacity to manage his property and affairs.
• The Deputy appealed against the decision made by the District Judge who dismissed the application and made no order for costs, meaning the Deputy could not recover any of their expenses.

The Appeal

Harris J allowed the appeal in part, finding that the District Judge had misapplied the law on costs. Harris J found that the District Judge had made a mistake on costs by failing to apply the general rule that in property and affairs Deputyship applications costs shall be paid by P or charged to P’s estate (rule 19.2, Court of Protection Rules 2017) (SI 2017/1035)) (COP 2017). The District Judge had also failed to consider the grounds for departing from this with reference to the factors set out in rule 19.5 of the COP 2017.

Reassessing the Costs Position

• Harris J reconsidered the matter from the start. While confirming that the general rule should be the initial benchmark, the Judge stressed that it is not absolute. There is a strong public interest in bringing appropriate applications before the Court of Protection, but that alone does not guarantee cost recovery for applicants.
• Harris J concluded that as a matter of natural justice, “it may appear perverse that P should pay the costs of the Deputy – who is a complete stranger to him – for an application he did not invite, always opposed, had no choice but to respond to, and ultimately was successful in defending.

In reaching the decision, the judge focused on two key factors:

1.    P having no choice but to respond to litigation he did not invite but being successful in defending the application and, as a vulnerable adult, having no way to protect himself against any costs exposure.

2.    The professional Deputy choosing to bring and pursue the application and being in a position to assess litigation risks.

Outcome

• Balancing these elements, the court concluded it was fair and just to depart from the general rule.
• Harris J concluded that the application to be appointed as Deputy ultimately failed and it was the responsibility of the professional Deputy to mitigate any costs exposure.
• Where an application has been made by a professional Deputy on referral from a local authority, the court suggested that the local authority could consider assuming the costs burden through a contractual arrangement with the Deputy, instead of imposing the burden on vulnerable adults.
• This costs decision shows that courts are prepared to depart from the general rule on costs where there is good reason to do so.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.