Staffordshire County Council v JP (by her litigation friend, the Official Solicitor) & Anor

The application before the court is made by the Official Solicitor on behalf of JP for a costs order against the applicant local authority for litigation failures over the course of these proceedings but, in particular, it is an application founded on two wasted hearings.

The first such hearing was on 8 June this year. The second was on 9 November. The hearing in November followed on from the non-compliance by the applicant local authority in failing to file court orders setting out a clear direction for progressing this matter and a failure to file and serve a Scott schedule pertaining to a protective injunction against CH, who is the subject of that interim injunction, which is in place for the protection of JP.

The application by the Official Solicitor is for a costs order against the local authority for those litigation failures which are in large part admitted, and apologised for, by the local authority.

The position of the local authority in response is that they oppose a costs order being made against them, and they say that any departure from the usual rule in health and welfare matters is not justified in this case.

The local authority says—whilst they accept and apologise for the litigation failures— that those failures have not been caused by any wilful neglect or bad motive, but are instead caused by the very difficult resource issues they face, the high workload of a small legal department with oversight of adult social care, sick leave on the part of the Deputy Legal Services Manager (who had been given oversight following the initial litigation failures leading to the wasted June hearing), and the very extensive and difficult workload of the solicitor who now has conduct of this matter for the local authority.

I have the benefit of a joint statement from the County Solicitor and Director for Adult Social Care. The County Solicitor sets out the challenges facing the local authority in terms of resource issues, and an ongoing struggle in terms of recruitment and retention. The local authority argues that there has been no material impact on JP by these litigation failures since the injunctive relief and protection was clearly necessary, and remains necessary, in light of the risks CH poses to JP. Therefore, they say, in terms of her welfare, JP has not been harmed or disadvantaged by their litigation failings.

In terms of the approach to costs orders, I remind myself of the provisions of rule 19.5 of the Court of Protection Rules 2017 and the usual provision that costs are not awarded in matters concerning health and welfare.

In terms of a departure from those usual rules, I remind myself that the relevant factors which may justify a departure from that general rule include the conduct of any party to the proceedings and their failures to comply with court directions or orders. I must take into account all relevant circumstances.

I remind myself of relevant authorities insofar as they assist, mindful that the court has a wide discretion in this regard, and each application will turn on the facts of the individual case. In particular, I note the judgment of Peter Jackson J. in AH and others v Hertfordshire Partnership NHS Foundation Trust and others [2011] EWHC 3524 (COP). He held that an order to depart from the usual costs rule does not require a finding of bad faith or flagrant misconduct as a relevant criterion, or exceptional circumstances.

This court, when faced with difficult resource issues such as this does not in any way blame any individual employee of the local authority. I accept that they are doing their best in exceptionally difficult circumstances. The failings are accepted by the local authority. They are institutional failures and include funding issues alongside difficulties with recruitment and retention of staff alongside the impacts of ill health and staff leave. The court is acutely aware of these issues and does not attribute blame or fault to individuals.

I have decided to make a costs order against the local authority for the following reasons.

When considering whether to depart from the usual costs provisions and the grounds to do so within the relevant factors, I am satisfied that, sadly, the failings of the local authority in the conduct of litigation for JP has been lamentable and of the utmost seriousness.

There have now been proceedings ongoing for well over 12 months in which very little progress has been made due to the delays caused by the local authority’s litigation failures. There have been two wasted hearings. The first in June was particularly concerning in light of the fact that no order was filed and served in accordance with the court’s expectation to set out a clear timetable in relation to which compliance was expected.

I am satisfied that Mrs Chapman, who has conduct for the Official Solicitor, made appropriate and extensive efforts to assist but was met with silence from the local authority.

In terms of the failings in November, again, the court having been extremely critical in June for those lamentable litigation failures, including a failure to file a court order, and prepare a Scott Schedule to deal with the application for an injunction, it is particularly significant and concerning that in November there was a second wasted hearing.

Turning to the failings, whilst the court is sympathetic to the resource issues, they do not excuse institutional failings and the impact they have had on the proper conduct of litigation before the court.

The local authority is the applicant and the responsibility primarily rests on them to ensure proper case management and progression to avoid the impacts of delay on other public bodies, including the court.

More importantly, the court is significantly concerned about the impact these failings have had on JP. I do not accept what is said on behalf of the local authority, that the lamentable litigation failures have had no detrimental impact on JP. It is well recognised that expeditious proceedings are necessary and in the best interests of P who should not be subjected to court proceedings, and the distress it causes, longer than necessary.

Whilst JP was protected for very good reasons by the injunctive order, this was not properly executed or enforced to ensure that that protection was maximised. There have been continued alleged breaches by CH during some of this period, which are reported to have caused JP ongoing distress.

At the bottom of these proceedings is a P who does not accept the need for injunctive relief and who wants this litigation to be conducted fairly, to ensure her interests are properly heard. Given the litigation failures of the local authority that has not been possible, because of the delays incurred.

I make it clear, furthermore, that whilst in many of these cases the courts are reluctant to make orders which involve, as here, public bodies and publicly funded parties— because, in effect, it amounts to “robbing Peter to pay Paul” and shifting scarce resources from one budget to another—I am significantly concerned that, until 3 November, those costs were borne by JP herself. She is a vulnerable individual, and she should not have to bear the burden of institutional failings, resulting in litigation failures.

Post 3 November, JP’s costs have been met by the public purse. Nevertheless, given the significant and lamentable failings at the second hearing on 9 November, in a second wasted hearing in such short order, after clear expectations were set by the court in June, in my judgment the local authority should bear the costs for that second wasted hearing as well. Such an order shifts costs around public departments—but all have different responsibilities to meet.

I make the order to reflect those failures and order that the local authority shall pay the costs incurred by JP of, and occasioned by, the hearings on 8 June 2022 and 9 November 2022—to be the subject of summary assessment by me if not agreed.

It is my clear view that the costs to be paid should include the section of Mr Harrison’s position statement prepared for today’s hearing insofar as it addresses costs. The local authority opposed the application today despite the clear views of the court as to the seriousness of their litigation failure, for which they have apologised. Mr Harrison, facing an opposed application, has quite properly prepared his position statement for a contested application. He has incurred that work, and cost, on behalf of JP and the Official Solicitor. In my judgment that should be reflected in the costs to be paid by the local authority.

I will make the order as sought by the Official Solicitor.

That is my judgment.