Court of Protection judge hits out at expense of cases costing £9,000 a month

A judge has sharply criticised the delay and expense of proceedings in the Court of Protection, describing the relevant procedural rules as “inadequate”.

Mr Justice Peter Jackson made the comments in A & B (Court of Protection: Delay and Costs) [2014] EWCOP 48 in relation to two cases he heard over consecutive days in October.

The judge said the two cases concerned young men who lacked the mental capacity to make decisions for themselves, but to differing degrees lived semi-independently.

In both cases the participants were local authorities, health providers, family members and the men themselves, with the Official Solicitor acting as their litigation friend and instructing local solicitors. In both cases, expert advice was obtained.

In Case A, the young man had capital from a damages award, and the cost of his representation came out of his capital, “which was of course not intended for that purpose”, Mr Justice Peter Jackson said. In Case B, the young man had no capital and the cost of his representation was met by the legal aid fund.

The judge said he would not name the parties or their representatives as the cases were “unfortunately not unique. Each case had its difficulties, but neither was exceptional of its kind”.

He revealed that in Case A, the proceedings lasted for 18 months. “In round figures, the estimated legal costs were £140,000, of which about £60,000 fell on the local authority, £11,000 on a legally-aided family member, and £69,000 on the young man himself, paid from his damages.”

The proceedings in Case B meanwhile lasted for five years. “In round figures, the estimated legal costs were £530,000, of which about £169,000 fell on the local authority, £110,000 on a family member (who ran out of money after three years and represented himself thereafter), and £250,000 on the young man himself, paid for out of legal aid.”

Mr Justice Peter Jackson described these figures as conservative estimates. “Each case therefore generated legal costs at a rate of approximately £9,000 per month.”

He added: “It would be superfluous to give further detail about the extravagance of the proceedings in order to conclude that the objective contained in the Court of Protection Rules 2007 was not remotely achieved in either case.”

Few, if any, of the case management strategies in rule 5 of the Court of Protection Rules 2007 were exhibited in the proceedings, the judge said. “There were too many hearings before too many judges, too much documentation, and too many lengthy adjournments with excessive time estimates for hearings.”

Mr Justice Peter Jackson said the consequence of the delay had been protracted stress for the young men and their families. There had also been the drain on the time and energy of social work and medical professionals.

The judge said the court and the parties had a duty to ensure that costs were reasonable. “That duty perhaps bites particularly sharply when we are deciding that an incapacitated person's money should be spent on deciding his future, whether he likes it or not.”

Mr Justice Peter Jackson also commented:

• A common driver of delay and expense was the search for the ideal solution, “leading to decent but imperfect outcomes being rejected”. People with mental capacity did not expect perfect solutions in life, and the requirement in Section 1(5) of the Mental Capacity Act 2005 called for a sensible decision, not the pursuit of perfection.
• There was a developing practice in these cases of addressing every conceivable legal or factual issue, rather than concentrating on the issues that really needed to be resolved.
• There was a tendency for professional co-operation to be dissipated in litigation. “This was epitomised in Case A, where the litigation friend's submission focussed heavily on alleged shortcomings by the local authority, even to the extent that it was accompanied by a dense document entitled ‘Chronology of Faults’. But despite this, the author had no alternative solution to offer.”
• The problem of excessive costs was not confined to the Court of Protection. “There is a danger that we become habituated to what Mostyn J called ‘this madness’, and that we admire the problem instead of eliminating it.”

The judge suggested that the main responsibility for this situation and its solution must lie with the court, which had the power to control its proceedings.

“The purpose of this judgment is to express the view that the case management provisions in the Court of Protection Rules have proved inadequate on their own to secure the necessary changes in practice,” he said.

“While cases about children and cases about incapacitated adults have differences, their similarities are also obvious. There is a clear procedural analogy to be drawn between many welfare proceedings in the Court of Protection and proceedings under the Children Act. As a result of the Public Law Outline, robust case management, use of experts only where necessary, judicial continuity, and a statutory time-limit, the length of care cases has halved in two years.”

The judge pointed out that by contrast Court of Protection proceedings could commonly start with no timetable at all for their conclusion, nor any early vision of what an acceptable outcome would look like.

“The young man in Case B is said to have a mental age of 8. What would we now say if it took five years – or 18 months – to decide the future of an 8-year-old?,” Mr Justice Peter Jackson said.

He added that he believed the time had come to introduce the same disciplines in the Court of Protection as now applied in the Family Court.

“Accordingly, and at his request, I am sending a copy of this judgment to the President of the Court of Protection, Sir James Munby, for his consideration.”