The NHS Trust v D

On 23 March 2012, in these Court of Protection proceedings, declarations were made authorising the withdrawal of medical treatment from D, who had been in a permanent vegetative state since July 2011. The applicant was the NHS Trust who were treating D and the declarations were supported by all those concerned for his welfare. The decision is to be found at [2012] EWHC 885 (COP).

On 26 March 2012, active medical treatment was replaced by palliative care, and D sadly died on Good Friday, 6 April 2012.

The Official Solicitor, who acted as D's litigation friend at the court's request, has applied for an order that the Trust should pay half of his costs. This application was opposed by the Trust, who argue that the proper outcome is for there to be no order for costs.

The case has been presented impeccably and neither party makes any criticism of the manner in which the other has acted. The scale of the costs is however substantial, reflecting the meticulous care with which such applications must be approached. The Trust's costs amount in round figures to £65,000 and the Official Solicitor's to £32,000, so the sum in question is £16,000 or thereabouts.

Nor is there anything to choose between these two publicly funded bodies in terms of need. Both are funded by Government on the basis of budgets set in a time of financial stringency.

The Trust is a small one. Its limited annual budget for legal expenses is already overspent. The Official Solicitor, who has a national remit, is facing similar difficulties. He already has to ration the circumstances in which he appears, though there is no suggestion that he will become unable to act in cases such as this.

Decisions about costs must now be taken under the Court of Protection Rules 2007. Rules 157, 159 and 163 concern costs:

The Official Solicitor’s application falls under r.163, the only costs rule that is specific to a particular body. The rules do not make clear whether r.163 takes applications by the Official Solicitor outside the general rule (r.157) and the exceptions (r.159), but in my view it is safer to assume that it does not.

Issues of conduct and success provide no basis for departure from the general rule in a case such as this. The question is whether there should be a departure on the basis of r.159(1)(c) – the role of any public body – and r.163 itself, which singles out the Official Solicitor.

Since the Mental Capacity Act came into force in October 2007, there has been no reported authority on the question of the Official Solicitor's costs. In contrast, over the course of the previous 25 years, there were no fewer than nine decisions and a Practice Note on the subject. It is in my view permissible to survey these materials, for the assistance that they contain: see RT v LT and Anor [2010] EWHC 1910, per Sir Nicholas Wall P.

Chronologically, the decisions are:

These decisions were carefully analysed by Sir Mark Potter P in the last of them. He found the overall position to be that, while there was no rule that required the Official to be awarded half his costs, there was a long-standing practice of the court exercising its discretion to make such orders. Sir Mark Potter remarked that pragmatism had its place in these particular types of case, and concluded that an order for half costs was a reasonable starting point.

The question is whether the 2007 Rules have changed this practice. Naturally, the Official Solicitor argues that they have not, while the Trust argues that the court has a genuine, unfettered discretion.

In my judgment, the Rules have not brought about a change in the considerations that the court should bear in mind when faced with an application of this kind. In proceedings under the inherent jurisdiction before the Act came into effect, the ordinary rule as between litigants was that there would be no order for costs unless there was some good reason for one, while the practice in relation to the Official Solicitor was, as we have seen, different. I find nothing in the Rules to suggest an intention to disturb this dispensation one way or the other. As already stated, orders for costs in favour of the Official Solicitor have never been based upon issues of conduct or success. His distinctive role as a public body assisting the court in the most difficult cases still finds expression in rr.159 and 163.

I therefore consider that the approach of Sir Mark Potter should continue to be followed, namely that in these cases an order for half costs is a reasonable starting point, from which the court can depart if there is reason to do so. I accept that to exercise discretion in this way in effect displaces the ‘general rule’ in cases in which the Official Solicitor acts, but the pragmatic basis for this compromise is as strong now as it ever was. To disturb long-standing practice would introduce uncertainty into every case, and foster costs arguments between public bodies. It would make it very difficult for public bodies to budget in individual cases and for the Official Solicitor to budget generally.

Applying that approach, and there being no special factors in this case, I direct the Trust to pay half of the costs of the Official Solicitor, to be subject to detailed assessment if not agreed.

Finally, there is much to be said for a rationalisation of the underlying arrangements, with the Official Solicitor’s budget being set in such a way that he does not depend upon the recovery of costs from other public bodies. That, however, requires a change by Government to the financial rules of the game. It is not a change that can be brought about by decisions of individual referees.