G (Adult), Re

I gave judgment in this matter on 1 May 2014, explaining why I was dismissing an application dated 8 April 2014 made by Associated Newspapers Limited (ANL), publishers of the Daily Mail, seeking inter alia to be joined as a party to the proceedings: Re G (Adult), London Borough of Redbridge v G and others (Associated Newspapers Limited, interested party) [2014] EWCOP 1361. There is no need for me to repeat what is in that judgment except to note that I described the application (para 47) as “misconceived” and that in relation to one suggested basis of participation I said that ANL would be (para 54) “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.” Nor is there any need for me to rehearse what Cobb J had said in his earlier judgment: The London Borough of Redbridge v G and others [2014] EWCOP 959.

The order I made gave the parties permission to make written submissions on costs. I accordingly have before me applications by both the local authority and the Official Solicitor, as G’s litigation friend, seeking an order that ANL pay their costs of the application. Inclusive of VAT, the local authority claims costs in the sum of £13,242. The Official Solicitor has not quantified his costs. ANL resists both applications and says that there should be no order as to costs.

With the agreement of the parties I have dealt with the matter without a hearing, on the basis of the written submissions prepared by Ms Laura Davidson on behalf of the local authority, Mr Parishil Patel on behalf of G and Mr Adam Wolanski on behalf of ANL.

Ms Davidson assumes and Mr Wolanski asserts that the application before me is governed by CoPR 2007 rules 157 and 159. Mr Patel disputes this. He submits that the question of costs is regulated, pursuant to CoPR 2007 rule 9, by CPR 1998 rules 44.3(2), (4) and (5).

The difference, of course, and the reason for the controversy is that whereas under CoPR 2007 rule 157 “the general rule is that there will be no order as to the costs”, under CPR 1998 rule 44.3(2)(a) “the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party.” In each case (see CoPR 2007 rule 159 and CPR 1998 rule 44.3(2)(b) respectively) the court “may” make a different order, having regard to all the circumstances, including in the one case those referred to in rule 159 and in the other those referred to in the very similarly expressed rules 44.3(4) and (5). So the essential difference is in the ‘starting point’ or ‘default position’.

It is convenient before going further to set out the relevant provisions of CoPR 2007:

“156

Property and affairs – the general rule

Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings or of that part of the proceedings that concerns P’s property and affairs, shall be paid by P or charged to his estate.

157

Personal welfare – the general rule

Where the proceedings concern P’s personal welfare the general rule 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.

158

Apportioning costs – the general rule

Where the proceedings concern both property and affairs and personal welfare the court, insofar as practicable, will apportion the costs as between the respective issues.

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 party 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 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.”

Mr Patel submits that rule 157 applies only to “that part of the proceedings” that concerned G’s personal welfare; that ANL’s application for joinder was not one to which sections 1(5) and 4 of the Mental Capacity Act 2005 applied (see by way of analogy Re AB [2013] EWCOP B39, para 63, and, to the same effect, Re PO, JO v GO and others [2013] EWCOP 3932, para 34) and therefore did not concern G’s welfare; and that accordingly the question of costs is regulated not by CoPR 2007 but by CPR 1998.

Mr Wolanski, to the contrary, submits that the purpose of ANL’s application was to enable it to engage in the process of determining issues concerning G’s personal welfare – relating to her contacts with ANL journalists – and that the “proceedings”, as that word is used in rule 157, plainly did concern G’s personal welfare.

I agree with Mr Wolanski. The overall scheme of rules 156-157 is, first, the drawing of a distinction between proceedings which “concern P’s property and affairs” and those which “concern P’s personal welfare” and, secondly, the principle that, where the proceedings concern both, the costs should be apportioned between “that part of the proceedings that concerns” the one and “that part of the proceedings that concerns” the other. It is for this reason, and not as suggested by Mr Patel, that rule 157 contains the words upon which he relies. The key word in each of rules 156, 157 and 158 is “proceedings” and not, it may be noted, some other word, for example, “application”. The use of the word “proceedings” invites two questions: What are the proceedings? Do they concern property and affairs or personal welfare? In the present case there can only be one answer: the “proceedings” concern G’s personal welfare. The fact that G’s best interests are not determinative of this particular application does not bear on the fact that the application was, as Mr Wolanski correctly submits, an application made in personal welfare proceedings and made for the purpose of enabling ANL to participate in personal welfare proceedings.

Accordingly the present application falls to be determined in accordance with rules 157 and 159.

I proceed to consider the application following the approach in AH and others v Hertfordshire Partnership NHS Foundation Trust and others [2011] EWCOP 3524, paras 11-12, where Peter Jackson J said:

“Where there is a general rule from which the court can depart where the circumstances justify, it adds nothing to say that a case must be exceptional or atypical for costs to be ordered … Each application for costs must be considered on its own merit or lack of merit with the clear appreciation that there must be a good reason before the court will contemplate departure from the general rule.”

I agree. I must have regard, as I do, to all the circumstances, including those referred to in rule 159.

Between them, albeit with differences of nuance and emphasis, Ms Davidson and Mr Patel identify the following reasons why, as they would have it, I should depart from the general rule in rule 157 and order ANL to pay the costs:

In sum, it is submitted (I quote Ms Davidson’s formulation), that ANL should pay the costs because it lost on each and every one of its arguments, because the motivation behind its application was self-serving and because an adverse costs order may serve to deter the Press from making future spurious interloper applications.

Mr Wolanski asserts that ANL’s application was prompted by the letters dated 2 and 8 April 2014 to which I referred in my previous judgment (para 14). He points out that it was not until the hearing before me that the Official Solicitor abandoned the contentions set out in those letters (which as I remarked in my judgment (para 15) I did not understand), as also the contention ventilated before Cobb J to which I also referred in my judgment (para 6). So, says Mr Wolanski, in the light of these matters it was not unreasonable for ANL to make its application which, so far as related to those matters, was in the event successful. For the same reasons, he says, the Official Solicitor’s conduct which led to ANL making its application was not reasonable. Moreover, the proceedings, as Cobb J had acknowledged, engaged fundamental questions concerning the freedom of persons like G to speak freely and publicly about proceedings in the Court of Protection. ANL’s application raised important and novel questions and the court should be slow to make an adverse costs order in such circumstances.

As a separate point Mr Wolanski submits that ANL should have to pay only a proportion of the costs, to reflect the facts that there was, he says, no need for the Official Solicitor to instruct two counsel, that ANL was to an extent successful and that part of the costs were occasioned by Roderic Wood J’s adjournment of the application on 11 April 2014.

By way of rejoinder, Mr Patel points out that ANL’s application did not concern the issue of whether Ms Reid had breached or was at risk of breaching Cobb J’s order.

I am unimpressed by the suggestion that ANL’s exposure to costs should be moderated because of the adjournment directed by Roderic Wood J. The financial consequences fall on all the parties, so why should ANL alone be protected? Nor is there much substance in the suggestion that there was no need for the Official Solicitor to instruct two counsel. Mr Wolanski himself properly directs attention to what he says were the important and novel questions, indeed the fundamental questions, raised by the application. More to the point, it might be thought, is why ANL should be required to pay two sets of costs when the local authority and the Official Solicitor were in substance arguing to the same effect.

I am troubled by the suggestion that ANL’s conduct during the proceedings should be visited in an adverse costs order, as also by the contention (even if factually accurate) that ANL’s application was self-serving and mounted for its own gain. This might be thought to reflect a mindset, also exemplified by the letters referred to above, which fails to recognise the vitally important role of the media and the valuable service the media provides, however uncomfortable this may sometimes feel to those steeped in the traditional cultures of the Family Court and the Court of Protection, in shining much-needed light on the workings of these necessarily powerful tribunals. Let it be assumed for the sake of argument – I make no findings on the point – that ANL’s reporting of the proceedings merited every word of Cobb J’s criticisms. What has that got to do with the question of costs with which I am alone concerned? With all respect to those who may think otherwise, nothing at all. Orders for costs are not to be made as a back-door method of punishing inaccurate or even tendentious reporting. The very suggestion is deeply unprincipled. Were the idea to gain acceptance it would inevitably have a chilling effect. At present, and for reasons which require no elaboration here, the Family Court and the Court of Protection need more transparency, more scrutiny by the media, more reporting – all vital if there is to be more public awareness and understanding – not less.

Stripped of all rhetoric, the essential point here 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 (para 52 of my previous judgment), 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 CoPR 2007 rule 159, it is right to depart from the general rule in rule 157. In my judgment it is, given the way 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). The costs, if they cannot be agreed, will have to be the subject of detailed assessment.

In concluding I wish to make one thing absolutely clear. The essential factor driving the order for costs I have made in this case was, in addition to the fact it failed, the nature of the application, namely an application to be joined as a party. It should not be assumed that the same approach would have been appropriate if the dispute had been, as it usually is in cases involving the media, a dispute as to the need for or the ambit of a reporting restriction order. Very different considerations arise in such cases. Conventionally, there is often no order for costs, whatever the outcome. Nothing I have said here is intended to have any application in such cases.