G (An Adult), Re

This is an appeal by the Official Solicitor who is the litigation friend of an adult who I shall call ‘G’ who lacks capacity within the meaning of the Mental Capacity Act 2005. The order appealed from is a costs order made by the President of the Court of Protection on 8 July 2014. By that order the President required Associated Newspapers Limited (ANL) to pay 30% of G’s costs and 30% of the costs of the London Borough of Redbridge (the local authority) of and incidental to an application made by ANL on 8 April 2014. The local authority did not appeal.

The proceedings concern G who is 94 years old. G lives in East London in a property which she owns. In October 2013 the local authority issued proceedings in the inherent jurisdiction of the High Court to safeguard G by removing two persons who were said to provide care for G in her home. Following a hearing on 17 and 18 February 2014, Russell J concluded that G lacked capacity to make decisions about her residence, care and contact with others and as a consequence the proceedings were transferred to the Court of Protection.

The parties to the Court of Protection proceedings are the local authority, G and the two named persons. There is a reporting restriction order made by Russell J which permits reporting but prohibits the identification of G and those two persons. The local authority made an application within the proceedings by which they sought to prevent the two named persons from taking G to “protests and meetings” with the media. That application came before Cobb J on 26 March 2014 who adjourned it to obtain evidence from a consultant psychiatrist about G’s capacity to make a decision to have contact with the media. Cobb J made interim declarations (i) that there was reason to believe that G lacked capacity to make decisions about having contact with the media, and (ii) that it was not in G’s interests to have that contact (reported as London Borough of Redbridge v G and Ors [2014] EWHC 959 (COP). One of the issues at that time was whether G’s private information might be used by other persons.

By the time of that hearing G had on occasions met representatives of the media to discuss her situation and there was conflicting evidence before the court about her wishes and feelings. The Official Solicitor and the local authority sought orders restricting contact between G and the media. The Official Solicitor made a proposal that the media be required to make an application to the court if there was to be any further communication by them with G. As will be apprehended that would have had the effect of creating a reverse obligation on the media not to have communications with her. Cobb J rightly rejected the proposal, concluding that it would place ‘an improper burden on the press’.

ANL attended the hearing before Cobb J anticipating that an injunction might be made against the media. They intimated to the judge that they might wish to vary the reporting restriction order made by Russell J with the consequence that the judge directed that any such application be made by 23 April 2014 so that all issues could be considered together at the adjourned hearing on 2 May 2014.

On 2 April 2014 and again on 8 April 2014 Bindmans solicitors who are acting for G as agents for the Official Solicitor wrote to ANL seeking an assurance from them that a named journalist would refrain from making social visits to G. In those letters which this court has seen, Bindman’s contended that the terms of Cobb J’s order prohibited such visits. ANL refuted the contention which led to it being repeated. The contention was manifestly wrong and I shall return to the implications of that in due course.

On 8 April 2014 ANL made an application to be joined as a party to the Court of Protection proceedings. They did not apply to vary the reporting restriction order. It appears from the application that the intention behind the application was to give instructions to the consultant psychiatrist which might be relevant to the issue of G’s capacity to communicate with the media. The Official Solicitor rightly, having regard to the decision of the President that followed, wrote to ANL to say that the application was misconceived and that costs would be in issue.

It should be noted that G’s savings will be used to pay for her representation through the Official Solicitor unless and to the extent that anyone else pays for that or the Official Solicitor in his discretion decides to bear the costs. It was by no means clear to this court at the time of the hearing what the eventual consequence would be in respect of each of the applications that have been made.

On 1 May 2014 the President dismissed ANL’s application to be joined as a party (reported as Re G (Adult), London Borough of Redbridge v G and others (Associated Newspapers Limited, interested party) [2014] EWCOP 1361). He accepted that the application raised “important and novel questions, indeed …fundamental questions” which he described as being of public importance. That echoed what Cobb J had said on 26 March 2014:

“[1] In this complex case, difficult interlocutory questions arise for my consideration and determination, which engage some fundamental questions about the role of a responsible local authority in proceedings under the Mental Capacity Act 2005, the function of the Court of Protection itself, and the freedom or right of people affected by proceedings, indeed the subject of proceedings, to speak freely and publicly about them.

[19] I should like to emphasise that I recognise that access to the press and freedom of parties to litigation to communicate with the press engages powerfully the competing rights under Article 8 and Article 10 of the European Convention of Human Rights. There is, in my judgment, a legitimate public interest in the reporting of proceedings in the Court of Protection concerning our vulnerable, elderly and incapacitous. There is a separate legitimate public interest in the court protecting the vulnerable, elderly, and the incapacitous from public invasion into their lives. These are, in stark terms, the competing considerations at play.”

In that context, the President decided that the application was misconceived. His reasons included the following:

The President identified the three issues that arose in the Court of Protection proceedings as:

His conclusion on the interest of ANL in those questions was as follows:

“I should add this, in relation to the insinuation by ANL that it should be joined as a party or allowed to intervene in relation to the issues of G’s capacity and best interests because otherwise relevant arguments may not adequately be put before the court. There is no basis for this. Quite apart from the rejection by those to whom this comment appears to be directed of any factual foundation for what is being said, this cannot be a ground for being allowed to participate in proceedings. Either ANL has some basis for being joined as a party or it does not. If it does, all well and good. If it does not, then it is a mere interloper, an officious busybody seeking to intrude in matters that are of no proper concern to it, seemingly on the basis that it can argue someone else’s case better or more effectively than they can themselves. Moreover, if it is said that the Official Solicitor is, in some way, not acting appropriately in G’s best interests, then the remedy is an application for his removal as her litigation friend, not the intrusion into the proceedings of a self appointed spokesman for G.”

The President invited written submissions on costs and made his determination in a judgment on 10 June 2014 that led to the order of 8 July 2014 (reported as In the matter of G (Adult) [2014] EWCOP 5). He decided that the costs of the application by ANL fell to be determined in accordance with rules 157 and 159 CoPR because the application was made within the personal welfare proceedings concerning G that were before the Court of Protection. He decided that it was appropriate to depart from the general rule in rule 157 that there be no order as to costs because the application was misconceived as described. He then went on to make a proportionate order because of the public importance of the issues, the stance adopted prior to the application by the Official Solicitor and the fact that ANL was faced with two costs bills from two public bodies, the Official Solicitor and the local authority.

His reasoning was as follows:

“Stripped of all rhetoric, the essential point is very simple: it is that ANL made an application, to be joined in proceedings in which it had no legally recognised interest, which was seemingly unprecedented…, which was, as I said, misconceived and which failed completely. The question at the end of the day is whether in all the circumstances, and having regard in particular to the matters referred to in the CoPR 2007 rule 159, it is right to depart from the general rule in rule 157. In my judgment it is, given in which I have characterised ANL’s application and the reasons why it failed. But that does not mean that ANL should necessarily have to pay all the costs, and I have concluded that that would be to go too far. There are, in my judgment, three factors which, taken in combination, justify this conclusion: first, the public importance of the issues; secondly the stance adopted beforehand in particular by the Official Solicitor; and thirdly, the fact that I do not see why ANL should be required to pay two sets of costs. Doing the best I can, and readily acknowledging that any figure is to an extent arbitrary, my conclusion is that ANL should be ordered to pay 30% of the costs of the local authority and 30% of the costs of the Official Solicitor (including his costs of instructing two counsel).”

I must return to the question of the stance taken by the Official Solicitor prior to the application by ANL because it is an important factor relied upon by the President. In his judgment on 1 May 2014 the President made it clear that there was no legal basis for the Official Solicitor’s contention that ANL were prevented from visiting G. This court was told that the President described the letters during discussion as having a “chilling effect”. I would agree with that description. In his judgment he refers to the letters as describing “a mindset…which fails to recognise the vitally important role of the media and the valuable service the media provides”. The Official Solicitor cannot gainsay the assertion made before this court that the letters triggered ANL’s application. The application may have been misconceived as a means to an end but one of the ends was achieved, namely that the President confirmed in terms that Cobb J’s order could not be construed to limit social visits to G. The importance of the public interest raised by the media and the response of the Official Solicitor are, in my judgment, of some significance to the costs decision subsequently made.

The grounds of appeal are that the President erred in law in holding that Court of Protection Rules applied and that he erred in the exercise of his discretion in the proportionate costs order that he made. There is no appeal against the President’s departure from the general position in rule 157 CoPR in the event that this court decides that the application fell to be determined in accordance with the Court of Protection Rules. I shall take each ground in turn.

On the first ground Mr Patel submits that ANL’s application was not within the Court of Protection proceedings, it was an application to become involved in them and it failed in limine. As a consequence, he says, the Civil Procedure Rules 1998 (CPR) apply. CPR 44.2(2)(a) provides that “the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party”.

The Official Solicitor’s case on this ground succeeds or fails on the assertion that the application cannot have been made in the proceedings because it was misconceived. Everything else flows from that. The application of the CPR is said to be by reason of the application of rule 9 CoPR, namely that “In any case not expressly provided for by these Rules or the practice directions made under them, the Civil Procedure Rules 1998 (including any practice directions made under them) may be applied with any necessary modifications, insofar as is necessary to further the overriding objective”. There are two assumptions within that submission that are not made out, namely a) that the Court of Protection Rules do not apply to an application which was demonstrably directed to the joinder provision in those rules (rule 75 CoPR) and b) that the application of the CPR is necessary to further the overriding objective.

The Court of Protection is a statutory court. The power to order joinder is contained in its rules. That is the step the President was considering on ANL’s application. The framework for the exercise of that decision is contained in the rules. It cannot be said that ANL’s application or the President’s decision to refuse it were steps taken outside the rules. Neither the inherent jurisdiction nor the default power described in rule 9 CoPR to apply CPR were engaged. The CoPR have their own overriding objective at rule 3 and it is no part of the Official Solicitor’s case that there is any power that is missing from the Court of Protection Rules which necessitates the use of the CPR to further the overriding objective.

The power to award costs is contained in section 55(1) of the 2005 Act. By section 55(3) the court has “full power to determine by whom and to what extent the costs are to be paid”. That is the power that the President was exercising in respect of ANL’s application. In order for him to apply rule 9 CoPR he would have had to decide that the application or the proceedings in which the application was made were not matters provided for by the Court of Protection Rules. I simply fail to understand how an application to be joined in accordance with a rule of the court, in this case rule 75 CoPR, can be described as an application not provided for by the Court of Protection Rules. Furthermore, the Court of Protection Rules are a free standing set of rules. Like the Family Procedure Rules 2010 they do not require to be supported by the CPR unless there is no provision in the rules that is engaged. With respect to the Official Solicitor, his submission is simply a device to suggest that the costs presumption should be reversed.

If ground one of the Official Solicitor’s appeal fails at the first hurdle, as it does, then it is accepted that the President was required to consider costs in accordance with part 9 of the Court of Protection Rules. That is what he did. The proceedings into which ANL applied to be joined were personal welfare proceedings. Rule 157 CoPR sets out the general rule in personal welfare proceedings which is “that there will be no order as to the costs of the proceedings or of that part of the proceedings that concerns P’s personal welfare”. Rule 159 governs the discretion which it is accepted the President had to depart from that general rule as follows:

“159 Departing from the general rule

(1)

The court may depart from rules 156 to 158 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances, including –

(a)

the conduct of the parties;

(b)

whether a part has succeeded on part of his case, even if he has not been wholly successful; and

(c)

the role of any public body involved in the proceedings.

(2)

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 issue;

(c)

The manner in which a party has made or responded to an application or to a particular issue; and

(d)

Whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response.”

Given the terms of the rule, the challenge to the President’s exercise of discretion is a bold submission. The President set out his reasons. He applied the framework set out in the rules. He identified those matters to which he gave weight. Given that he had concluded that the Official Solicitor had triggered ANL’s application and that he had not understood the public importance of the media’s general role, a proportionate order was an unsurprising outcome. An appeal against the exercise by a judge of his discretion faces a high hurdle. I shall give just one well known example of that hurdle as described by this court in respect of proceedings in this jurisdiction: Burchell and Ballard [2005] EWCA Civ 358, [2005] CP Rep 36 at [25] per Ward LJ:

“Appeals against orders for costs are notoriously difficult to sustain. That is because the trial judge has a wide discretion with the result that this court will only interfere with his decision if he has exceeded the generous ambit within which there is usually much room for reasonable disagreement or because, even more unusually, he has erred in principle.”

One only has to consider the exercise of discretion in this case from a perspective other than the Official Solicitor’s to understand the point. It was reasonable for the media to raise an issue of public importance and the Official Solicitor failed to understand that issue. The letters written on behalf of the Official Solicitor were wrong and that was conduct before the application and within the proceedings. In this appeal Mr Patel seeks to explain the Official Solicitor’s stance by postulating that any journalist who intruded into G’s private affairs would have been unjustified given Cobb J’s interim declarations and the Press Complaints Commission Editor’s Code of Conduct, but that involves issues of fact which were not established. ANL’s response was wholly misconceived and that was conduct within the proceedings. ANL achieved one of the ends they pursued which was the issue of public importance relating to the role of the media that was triggered in the manner described.

In my judgment the Official Solicitor succeeded on the application i.e. he won a battle but lost a point of principle. ANL lost the application but achieved clarity in relation to a point of principle. None of this should be taken to be an encouragement to the media to use misconceived applications of this kind but it seems to me to be impossible for the Official Solicitor to succeed in arguing that the President exceeded the broad ambit of his discretion by placing too much emphasis on one factor or too little emphasis on another such that he was wrong.

There is one further argument that tells against the second ground of the appeal and that is whether and to what extent ANL should pay two sets of costs. It is submitted by Mr Patel that this was irrelevant. I disagree. The President cannot be said to have been wrong in principle to raise a question that is within the framework of the rules and the terms of rule 159 CoPR. In doing so he apprehended a general principle applied from the administrative law context. There is ample authority for the proposition that multiple representation where there is no significant difference between the arguments of parties on an application is to be discouraged by a limitation in costs. See, for example, the proposition cited with approval by Lord Lloyd of Berwick in Bolton MDC v Secretary of State for the Environment and Ors [1995] 1 WLR 1177 at 1178:

“In my judgment in circumstances such as these where the issues argued on behalf of two or more respondents are identical, the court should be disposed to make only one order for costs”

The President would have had that principle well in mind given his decision in R (Smeaton) v Secretary of State for Health [2002] 2 FLR 146 at 245 where he overtly applied the principle.

For these reasons I concurred in the dismissal of the appeal. At the conclusion of the proceedings the court expressed its strong view that this appeal should not have any adverse financial effect upon the assets of G. The Official Solicitor has considered that view and I am grateful to him for his confirmation that G will not bear the costs of this appeal.

I agree.

I agree.