Cheshire West & Chester Council v P

We handed down judgment in this matter on 9 November 2011: [2011] EWCA Civ 1257. We now have to deal with the costs of the appeal. The local authority seeks an order for costs against P. The Official Solicitor says that there should be no order as to costs.

In the court below, and because of what he found to be the local authority’s misconduct, Baker J exercised his powers under Rule 159 of the Court of Protection Rules to depart from the general rule in Rule 157 that there will be no order as to the costs of personal welfare proceedings in the Court of Protection. But he held that the costs of the deprivation of liberty point should not follow the event, because although the respondents had “won” on that issue it was a complex issue and the local authority’s stance had not been unreasonable: [2011] EWHC 1330 (Fam), para [76].

It is common ground that although this is an appeal from the Court of Protection the Court of Protection Rules do not apply; that because this is an appeal from the Court of Protection and not the Family Division Rule 44.3(3) of the Civil Procedure Rules does not apply; that the question of costs in this court is therefore governed by the other provisions of CPR 44.3; and that the general rule is therefore, in accordance with CPR 44.3(2)(a), that the unsuccessful party – here P – will be ordered to pay the costs. It is also common ground that, because P is publicly funded, and therefore entitled to the protection of section 11 of the Access to Justice Act 1999, our primary task is that defined by regulation 9(1) of the Community Legal Service (Costs) Regulations 2000: to “consider whether, but for cost protection, [we] would have made a costs order against [P].

Mr Gordon submits that there should be no order as to costs, both as a matter of principle and having regard to the circumstances of the case. As to the first, Mr Gordon submits that although Court of Protection proceedings are not family proceedings and do not expressly come within the exemption in CPR 44.3(3)(a), they are so closely analogous to, indeed so similar to, public law family proceedings – both involve the state exercising its protective powers – as to be indistinguishable in practice. Consequently, he says, they should be treated as falling within the exemption by necessary implication. Alternatively, he submits, even if they do not fall within the exemption stricto sensu, this court ought to be less willing, in the exercise of discretion, to order costs against a party in an appeal from Court of Protection personal welfare proceedings than it would, for example, in what he calls an ordinary civil case. Indeed, he says, it should weigh heavily on the court. In any event, he submits, discretion should be exercised in favour of P, a man who, as he correctly points out, could hardly be more vulnerable: (a) he was defending a decision from a High Court Judge in his favour, (b) the issue involved was of fundamental importance to P, a vulnerable person whose liberty was significantly restricted and where the engagement of Article 5 was the issue in the appeal, (c) the issue is and was also one of wider significance to many (perhaps thousands) of others in similar positions, (d) the general rule in the Court of Protection is that there is no order for costs, (e) there is and was no suggestion that P has acted unreasonably in the conduct of this litigation, and (f) in contrast, the local authority’s conduct at first instance was so poor that it resulted in adverse costs orders being made against it.

Ms Richards submits that the answer to the question we have to ask ourselves is clearly ‘Yes’: (a) this accords with the proper exercise of the general rule in CPR 44.3, (b) it is consistent with the overriding objective contained in CPR 1.1(1), (c) P was not compelled to oppose the appeal, but chose to and was unsuccessful, having previously chosen to argue before Baker J that there was a deprivation of liberty and decided to maintain that stance strongly even after the Court of Appeal had given judgment in P and Q v Surrey County Council [2011] EWCA Civ 190, [2011] 2 FLR 583, (d) Parliament has decided not to include Court of Protection proceedings within the exception in CPR 44.3(3), and (e) the local authority’s conduct at first instance is wholly irrelevant. In short, she says, the general rule in CPR 44.3(2)(a) should apply.

I cannot accept Mr Gordon’s argument of principle. It comes perilously close to an impermissible invitation to us to re-write CPR 44.3, whether by incorporating within it the principle in Rule 157 of the Court of Protection Rules or by adjusting CPR 44.3(3) to include a reference to the Court of Protection. Our task is to apply CPR 44.3. I accept, of course, that we can properly have regard to the fact that the appeal concerns a vulnerable adult in the context of the court’s protective functions and not, for example, a valuable cargo in the context of a commercial dispute, but this is not because of some supposed analogy with either CPR 44.3(3) or Rule 157 of the Court of Protection Rules. It is simply because it is one of the “circumstances” – and, it may be, one of the more important of the circumstances – to which CPR 44.3(4) bids us have regard.

I turn, therefore, to Mr Gordon’s final submission based on the facts of the case. I agree with Ms Richards that the local authority’s conduct at first instance is wholly irrelevant. It had nothing to do with the proceedings before us and has already been take account of in the costs orders made by Baker J. And for reasons which will be apparent I cannot accept the relevance of the general rule as to costs in the Court of Protection. But that apart, the factors identified by Mr Gordon have all to be taken into account, as have the factors identified by Ms Richards.

I intend to lay down no principle, other than that every case has to be decided by reference to the criteria in CPR 44.3. And I say nothing as to what order for costs this court might make in any future case of this type. I confine myself to the circumstances of this case. In my judgment, in the circumstances of this particular case there should be no order as to costs, save for whatever form of assessment of P’s costs may be required for public funding purposes. Among the primary reasons for making no order is that the reason for and the importance of the appeal was not really at all about how P will be dealt with. The point of major importance for the local authority, and indeed local authorities generally, was how often they have to come back to court in this and other like cases. Of course P (or rather the Official Solicitor on his behalf) could have chosen not to resist the appeal, but the court would have found it much more difficult to deal with if unopposed – and might even have needed an advocate to the court.

I agree.

I also agree.