London Borough of Lambeth v MCS & Anor

As a result of my observations and findings in the Judgment of 26 June 2018 I invited the parties’ submissions on costs. The Official Solicitor’s position is that the entirety of the costs of the proceedings should be born by the London Borough of Lambeth and the Lambeth Clinical Commissioning Group on the basis a) that the proceedings should never have been brought and b) their conduct of the proceedings once commenced. I have received written submissions from all parties. Most of the points made on behalf of the Applicant/Second Respondent are directed towards the content of the Judgment. Most are entirely incorrect factually, and in any event, have little or no effect on the main thrust of the Court’s consideration on costs.

Proceedings brought in the Court of Protection almost never attract an enquiry into the issue of costs, essentially since they are inquisitional in nature, the general costs principles do not sit easily within the parameters of the Court’s considerations. However, as the President recognised in Re G [2014] EW COP 5, there will occasionally be cases but there must be good reason before the Court will contemplate departing from the general rule. For example an order for costs was made in Re SW [2017] EW COP 7 where the application was “scarcely coherent … totally without merit … misconceived and vexatious”. These proceedings would not necessarily be categorised in that way, but what if they were or should have been fundamentally unnecessary, that is to say they should never have been brought? Or what if the conduct of the proceedings been so poor, so incompetent that not only did they take much longer than they should (thus unnecessarily necessitating P remaining for so very much longer in difficult circumstances) and requiring many extra unnecessary hearings? In those circumstances is the Court not able to mark its disapproval by the consideration and award of costs.

It is obvious that the Court is deeply critical of the manner in which this case was handled both before and after the institution of proceedings. It is further troubling that even within the written submissions are many misconceived assertions or contentions as to fact. The proceedings were instigated by P’s RPR in December 2016 because no constructive progress for P was being made. P was unsettled, unable to communicate, frustrated and quite evidently deeply unhappy. A situation which could and should have been avoided. As the chronology in the judgment makes clear, by the end of 2014 or early 2015 at the latest, P was ready for discharge but the enquiries lacked focus or persistence, and whilst I have no doubt that the Applicant and/or Second Respondent believe they worked tirelessly, the bald fact is that they did not. The enquiries were ineffectual, even amateur. Apparent “unexplained difficulties in dealing with the Columbian authorities and organisations” were not subsequently born out. Inexplicably, basic common sense enquiries with the Columbian Embassy had still not occurred many months into the proceedings. As I have found, their efforts were unfocused and superficial. This might be thought to be explained by the apparent novelty of the situation as it presented itself, but what happened during the currency of the proceedings supports the contrary view, that too little intelligent professional focus was brought to bear and bring this most unhappy situation to a conclusion. To submit that the CCG was “throughout commendably assiduous” in seeking the return to Columbia is about as misplaced and offensive a submission as could possibly be contemplated. The judgment records, order after order which was not complied with. Equally, it is submitted “the Applicant and Second Respondent remind the Court of the expressions of satisfaction given by P’s family and by the Columbian Government on her behalf”. They recognise that the CCG worked tirelessly to repatriate P in exceptional circumstances. It would be unfortunate if those efforts were met with a punitive order for costs. Such a submission is at best misplaced. How much more satisfied would P have been to have been repatriated years earlier, rather than being kept caged in an environment and jurisdiction where she was so obviously unhappy and did not belong.

It should not be thought that I overlook the care that was provided to P, nor, ultimately her successful repatriation, but what is impossible to ignore is the disorganised thinking, planning and management which resulted in her detention here for so very much longer than necessary.

Without hesitation I conclude that the circumstances of this case are so poor and so extreme (both in relation to institution of proceedings and their subsequent conduct) that I should make an order that the costs of the proceedings should be born by the Applicant and Second Respondent. It is submitted to me (at paragraph 2) that the Court is asked to consider that whilst the Applicant was a party throughout, the CCG only being joined towards the end of the proceedings, it was the CCG who was the decision maker. I am not entirely clear what is being submitted here, Ms Rowlands represents both, and I am unable to make any apportionment. They are both public bodies, I simply make an order against both jointly and severally.