Costs in the Court of Protection

Alistair Cantor considers a case which serves as a cautious reminder that the general rule that parties bear their own costs in Court of Protection proceedings, can be displaced in cases of unreasonable conduct.

In MR v SR (application for costs) [2016] EWCOP 54 M, the daughter of N, a 68-year-old female, brought proceedings under s15 of the Mental Capacity Act 2005 for a declaration that it was not in N’s best interests to continue to receive life-sustaining clinically assisted nutrition and hydration via an endoscopic tube. N was by that time profoundly impaired both physically and mentally due to the progressive degenerative impact of multiple sclerosis, with which she had been diagnosed some 23 years previously. The proceedings came before Hayden J, who gave a substantive judgment (Re N [2015] EWCOP 76) granting the application and the declarations sought.

M subsequently applied for an order that the Clinical Commissioning Group (CCG) concerned pay two-thirds of her costs of the application. The court’s discretion to determine by whom and to what extent the costs were to be paid arose under s55(1) and (3) Mental Capacity Act 2005, but limited by the general rule for proceedings concerning P’s welfare that there should be no order as to costs pursuant to Rule 157 COP Rules 2007. That rule was further subject to Rule 159, which permitted the court to depart from the general rule where “the circumstances so justify”, such circumstances including conduct, the manner of a party’s response to an application or issue, and whether a party has succeeded in his/her case.

M’s contention was that such an order was warranted by means of the CCG’s conduct, in particular: delays in investigating N’s condition; delays in disclosing medical records; failures to respond promptly to emails; and, of particular importance, the CCG’s failure to issue proceedings itself, thus obliging M to do so.

The CCG’s response was that being ordered to pay two thirds of M’s costs was manifestly excessive. An application for a declaration was inevitable, as demonstrated by the Official Solicitor’s initial stance that the presumption for life had not been displaced, and barring costs of issuance M had incurred no more expenditure than she would have done as a respondent. The CCG argued that the only awards of costs against it should be in respect of specific instances of unreasonable conduct that might be identified.

Hayden J rejected the CCG’s submission that he should “deconstruct the particular instances of the CCG’s unreasonability”. Determination of costs was not a “precise science [but rather] an intuitive art reflecting the judge’s feel for the litigation as a whole”, and it would be particularly inappropriate to analyse each parties’ individual reactions at the various stages of the proceedings in a case of this nature.

However, Hayden J was satisfied there had been unreasonable conduct on the part of the CCG in the following ways:

1. Its responses had entailed avoidable delay, with consequential costs.
2. There had been a disturbing disregard for National Guidelines, particularly at the procedural stage.
3. M had fought a brave application, and had ultimately succeeded in showing her instincts as to N’s best interests were correct.
4. In doing so, M had incurred substantial costs that she would not have had to had the CCG brought the application. In that event, M could have elected to be an unrepresented party and sheltered under the wing of the Official Solicitor or the CCG.  As applicant, she had no choice but to be represented.

Hayden J decided that the CCG should pay a proportion of M’s costs, but that two thirds was excessive. He ordered that the CCG pay half of M’s costs.

Alistair Cantor is a barrister at Field Court. he can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared on the set’s public law blog.