MR v SR & Anor (Rev 1)

Following my substantive Judgment, in Re N [2015] EWCOP 76, an issue has arisen in relation to the costs of the proceedings. I gave a further judgment addressing the question of publicity following N’s death: Re M v Press Association[2016] EWCOP 34. The costs of that application do not arise for consideration here.

This application for costs itself is highly distressing and has generated a good deal of paperwork and no doubt a great deal of time and expense. Fortunately the parties agreed that the application could be resolved as a paper exercise. When I agreed to that course I had not anticipated such extensive written argument. Much time has been spent analysing the factual history of the litigation and I have been provided with a great deal of case law.

As the parties recognise section 55 (1) Mental Capacity Act 2005 provides that costs are in the Court’s discretion. Section 55 (3) bestows on the Court full power to determine by whom and to what extent the costs are to be paid. However, the ‘general rule’ prescribed by rule 157, Court of Protection rules 2007 provides that where the proceedings concern P’s welfare the general rule is that there should be no order as to the costs of the proceedings. It is unnecessary further to burden this short judgment with the detail of those particular provisions.

The case law shows Judges to be fastidious in not giving guidance over and above the words of the rules themselves. E.g. in the matter of G [2014] EWCOP 5, per Sir James Munby (P) at para 5. In particular, I do not think it helpful to try to put a gloss on Rule 159, it provides for ‘departure from the general rule’ where ‘the circumstances so justify’:

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 –

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.

In the non exhaustive factors included within Rule 159 (1) and (2) as can be seen above, are such matters as ‘conduct’ of the parties, ‘manner of response’ to application, whether a party has ‘succeeded’ in whole or in part. Given the extraordinary sensitivity of the issues in this case these criteria are difficult to apply and do not seem to be wholly apposite in a case which ultimately had an investigative, non adversarial complexion to it. For reasons which I gave in my judgment which I do not propose to repeat here and from which I do not for one second depart, I required the experts to give evidence even after they had reached a professional consensus.

Mr Culverhouse points to the delays in the investigation and harnesses the criticisms of the Official Solicitor, for example in relation to the significant delays by the CCG in providing disclosure of the medical records. The Official Solicitor expressed himself in unambiguous terms, again which I need not repeat. Further criticisms also assert failure to comply with the Royal College of Physicians National Clinical Guidelines; failure to respond promptly to emails; the particular costs of the 31^st July hearing etc. Perhaps the central complaint is that the family should never have been put in a position where they were forced to make the application in the first place and in consequence of the CCG’s failure to follow the guidance.

The CCG says that the request that they pay two thirds of the Applicant’s costs of the proceedings is ‘manifestly excessive’: applications for Court declarations were ‘inevitable’ given the unique state of the facts in the context of the existing case law. This is reinforced by the Official Solicitor’s initial stance that presumption in favour of life had not been displaced. The essence of the response is that the applicant would, apart from issue costs etc, have incurred roughly the same expenses had she been a Respondent rather than an Applicant. This analysis leads to a submission that I should only award costs against the CCG where identified instances of ‘unreasonable conduct’ are established.

Determination of costs is not a precise science in any case, it is an intuitive art reflecting the Judge’s feel for the litigation as a whole. In a case such as this it is almost invidious to dissect the party’s individual reactions at each stage of, and indeed prior to, this highly charged application. I am not prepared to deconstruct the particular instances of the CCG’s un-reasonability, I am however satisfied that their responses entailed avoidable delay and, particularly at the procedural stages, a disturbing disregard for National Guidelines. I consider that the failure to follow guidance and Ms Rosenbaum’s ultimate decision to bring the application herself are inextricably linked. I do not see how it could be sensibly argued to the contrary. Having taken the initiative I am also satisfied that she encountered delays in response and consequential costs. I do not however consider it to be appropriate to burden the CCG with her full costs at a hearing which was protracted because the Judge alone considered it necessary to do so. As I have said above, in so many respects, this case was unique.

Ms Rosenbaum brought a very brave application. It was her efforts that finally brought a proper medical evaluation of her mother’s circumstances. Her instincts from the start were proved to be correct. In the litigation she achieved what I consider to be the right outcome for her now late mother. In that process she will have incurred considerable costs which she should not have had to do. Had the Trust brought the application itself she could have reasonably decided, as many families do, to be an unrepresented party, effectively sheltering under the wing of the Official Solicitor or indeed the Trust itself. As an applicant she had no real choice other than to be represented.

All of this is not easily accommodated within the ambit of Rule 159. However having regard to the case law especially: London Borough of Hillingdon v Neary & Others [2011] EWCOP 3522; North Somerset Council v LW, University Hospital, Bristol NHS Foundation Trust and in the matter of G [2014] EWCOP 5, I consider that the CCG should, in part, be responsible for the Applicant’s costs. I agree that the requested two thirds is excessive but consider they should be responsible for half her costs.

I delivered the above reasoning by way of a note in response to the written representations. An order has now been drafted, which I approve, giving effect to my decision. I was also asked if the note I issued could be placed into the public domain. For this reason I have transferred it to this judgment template, in order that it may be placed on BAILII in the usual way.