JB (Costs)

In these Court of Protection proceedings I am concerned with one young man, JB, who has a diagnosis of a learning disability and ADHD. He was accommodated at a specialist residential unit, AH, in August 2017.

These proceedings were commenced on 14^th November 2019. JB’s mother, SB, was a party to the proceedings and JB was represented by his Litigation Friend, the Official Solicitor. The application by the local authority invited the court to make the following declarations and orders:

On 31^st January 2020, AH gave notice to the local authority that JB would need to leave the placement by 5^th June 2020.

In a witness statement dated 28^th February 2020, the social worker set out the position of the local authority in respect of JB’s future placement after he had left AH. It was noted that a joint approach by social care and health providers would be required to meet JB’s behavioural needs.

Just prior to the hearing on 22^nd April 2020, the local authority filed and served a second statement from the social worker setting out that:

no providers of residential placements had been identified, either locally or nationally, who could meet JB’s needs or were willing to offer him a placement; and

whilst the local Clinical Commissioning Croup (CCG) had accepted a referral in respect of JB it had postponed assessments of him because of the pandemic.

At the hearing on 22^nd April 2020, in addition to giving further case management directions, I declared that JB lacked capacity to conduct this litigation and to make decisions about his residence, care and support, contact with others and his use of the internet and social media. I made interim orders that the placement at AH continued to be in JB’s best interests and I continued the deprivation of liberty order.

At a further hearing on 11^th May 2020, I was told that AH had slightly revised its position and that it required JB to leave the placement by late July 2020 and it would

On 18^th May 2020, further to a direction I had made on 11^th May 2020, the local authority filed and served a statement by the authority’s director of adult services. In the statement the director asserted as follows:

It became clear that there was a dispute between CCG A, the CCG for the area where JB had lived before going to live at AH, and CCG B, the CCG for the area where JB lived at AH, as to which of them was responsible for assessing and providing services to JB. At the hearing on 21^st May 2020 both CCGs were joined as parties to these proceedings.

SG, SB and the Official Solicitor all filed and served skeleton arguments in response to the local authority’s skeleton argument in support of its application for an injunction against SG. All three submitted that the court did not have jurisdiction to make the injunction sought by the local authority. In response, on 19^th June 2020, the local authority gave notice that it was going to seek permission to withdraw the application for injunction.

At the hearing on 9^th July 2020, I gave the local authority permission to withdraw its application for an injunction and, by consent, I ordered the local authority to pay SG’s costs.

CCG A had by this time agreed to take the lead in the commissioning and case management of a future placement.

Subsequently SB and the Official Solicitor applied for costs against the local authority in respect of the costs occasioned by:

the local authority’s application for an injunction against SG; and

the local authority’s failure to make an application for CCG A and CCG B to be made parties to these proceedings earlier than 21^st May 2020.

I gave directions for the filing of written submissions by SB, the Official Solicitor and the local authority on the issue of this application for costs. The local authority opposed both SB’s and the Official Solicitor’s application for costs.

The Court of Protection Rules provide as follows:

the conduct of the parties;

whether a party has succeeded on part of that party’s case, even if not wholly successful; and

the role of any public body involved in the proceedings.

conduct before, as well as during, the proceedings;

whether it was reasonable for a party to raise, pursue or contest a particular matter;

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

whether a party who has succeeded in that party’s application or response to an application, in whole or in part, exaggerated any matter contained in the application or response; and

any failure by a party to comply with a rule, practice direction or court order.

make a summary assessment of the costs; or

order a detailed assessment of the costs by a costs officer;

Subject to Court of Protection Rules, the costs of and incidental to all proceedings in the court are in its discretion.

The rules may in particular make provision for regulating matters relating to the costs of those proceedings, including prescribing scales of costs to be paid to legal or other representatives.

The court has full power to determine by whom and to what extent the costs are to be paid.

The court may, in any proceedings—

disallow, or

order the legal or other representatives concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with the rules.

"Legal or other representative", in relation to a party to proceedings, means any person exercising a right of audience or right to conduct litigation on his behalf.

"Wasted costs" means any costs incurred by a party—

as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or

which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.”

Bad faith or flagrant misconduct are not conditions precedent to justify a departure from the normal principle: Re AH [2001] EWHC 276 (COP). In Re M[2015] EWCOP 45 it was noted that:

In support of the Official Solicitor’s application for the costs occasioned by the local authority’s application for an injunction against SG, Mr Joseph O’Brien, for the Official Solicitor, made the following submissions:

I entirely agree.

The force of these submissions is underscored by the fact that having received the skeleton arguments of SG, SB and the Official Solicitor, the local authority elected, after instructing alternate leading counsel, to not pursue the application for an injunction.

Ms Morris QC, the newly instructed leading counsel for the local authority, submitted in response that:

no injunction was sought against SB or the Official Solicitor; and

that the skeleton arguments filed and served on behalf of these two parties added nothing to the skeleton argument filed and served on behalf of SG.

With respect, these submissions are flawed for two reasons. First, the application for an injunction was made in these proceedings to which both SB and the Official Solicitor were parties. Furthermore, they both had a legitimate interest to support or oppose the making of the injunction sought in the context of the impact of making, or of not making, an injunction upon the residence, care and best interests of JB.

Second, the mere fact that the skeleton arguments of SB and the OS reached the same conclusions as those in the skeleton arguments of SG (and I note these were not filed and served sequentially) is irrelevant to the issue of whether the local authority should bear their costs occasioned by the injunction application. Moreover, this submission ignores the fact that I ordered SB and the Official Solicitor, along with SG and the local authority, to file and serve skeleton arguments on the issue of the application for an injunction.

In support of the application for costs on the basis of the failure to join the CCGs at an earlier stage of the proceedings (i.e. by February 2020) the Official Solicitor, supported by SB, submitted that:

That there was a real urgent need to identify an alternative placement for JB given the increase in his challenging behaviour which was causing many problems for AH. [Paragraph 6 (b) and (c) above]

The local authority did not have the expertise to identify an alternative provision for JB and regarded his needs as being primarily health based [Paragraph 6 (b) above]

The local authority’s application for an injunction against SG was seriously flawed. For the reasons set out in Mr Joseph O’Brien’s submissions, at paragraph 17 above, I am satisfied that the application was totally without merit. The local authority’s conduct in making and pursuing the application, in my judgment, amounts to unreasonable conduct which justifies a departure from the usual rule of no order for costs. I will order the local authority to pay the costs of SB and the Official Solicitor occasioned by the injunction application.

I am not in a position to identify which elements of the costs of SB or the Official Solicitor were occasioned by the injunction application and accordingly I will direct that the order for costs should be the subject of a detailed assessment in the absence of the parties reaching an agreement on the quantum of costs.

In relation to the second limb of the costs applications by SB and the Official Solicitor, I accept that it may have been prudent to join CCG A and CCG B to these proceedings at an earlier stage and had this been done it may have resulted in identifying a suitable placement for JB at an earlier time: but I have my doubts. Accordingly, I am not persuaded that I should depart from the usual costs rule and order the local authority to pay any costs which may have been occasioned by the failure to join the CCGs at an earlier stage of these proceedings.

Furthermore, and in any event, I am not persuaded that the failure to join the CCGs prior to 21^st May 2020 in fact occasioned any significant amount of additional costs to be incurred by either SB or the Official Solicitor. Accordingly, the applications for costs against the local authority on this ground are refused.

I shall order the local authority to pay the costs of SB and the Official Solicitor occasioned by the application for an injunction against SG. In the absence of agreement on the quantum of costs, this costs order shall be the subject of a detailed assessment.