View source for FLW Re CP; WBC v CP (2012) EWHC 1944 (COP), (2012) MHLO 144

''WBC v CP & Ors [2012] EWHC 1944 (Costs)''

''Application by the brother of a vulnerable adult for a costs order against a Local Authority - consideration of the principles which apply.''

This was an application for costs against a Local Authority by LPM, the brother of CP (a vulnerable, young adult), in relation to proceedings brought by the Local Authority which concerned CP and which were heard in the Court of Protection and Administrative Court. The judgment in those proceedings is reported at [2011] EWHC 1539 (Admin).

CP suffers from a multiplicity of impairments including severe autism, severe learning disabilities and very significantly impaired communication skills.  He had lived in a residential special school for pupils with severe learning difficulties and complex needs, having moved there in May 2007 (when aged 14 years).

The Local Authority's conduct both before and during the court proceedings was the subject of serious criticism by the court. In light of this, LPM succeeded in obtaining an order that the Local Authority pay his costs. The court was not invited to make an assessment as to the value of the costs award, but simply considered the principle of whether such an order should be made.

In his judgment Ryder J endorsed the legal principles relating to costs set out by the Court of Appeal in G & E [2011] EWCA Civ 939. The rules governing the award of costs in the Court of Protection are set out in Part 19 of the Court of Protection Rules and the rules relevant to the application are detailed in Rules 157 and 159. Further, Rule 160 provides that, subject to the provisions of the Court of Protection Rules, some parts of the Civil Procedure Rules 1998 ("CPR") shall apply, with appropriate modifications, to costs incurred in relation to proceedings under the Court of Protection Rules. This includes Part 44 of the CPR relating to costs. CPR Rule 44.3(1) and 44.3(6) were relevant to the current application.

Ryder J re-affirmed that the Court should follow the general rule on costs in welfare cases where it is appropriate, and it is only local authorities who have broken the law, or who are guilty of misconduct (that falls within rule 159) that have reason to fear a costs order, G & E [2010] EWHC 3385 (Fam), per Baker J at [40], as approved by the Court of Appeal (supra) at [16]. Ryder J confirmed that the questions to be addressed are: (a) is the departure from the general rule justified in all the circumstances, including the conduct of the parties, the outcome of the case and the role of the Applicant as a public body?; and (b) if so, what order should be made?(Hillingdon v Neary & Neary [2011] EWHC 3522 per Peter Jackson J). 

Ryder J was satisfied that in the circumstances of this case there had been a disregard of the processes of the Mental Capacity Act 2005 and the Children Act 1989, breaches of statutory obligation and a failure to apply the relevant Guidance to CP when he was secluded/restrained within a room in the school.  It therefore followed that there was a disregard of the obligation to respect the rights of CP and LPM.  As in G & E, (supra) such misconduct justified departing from the general "no costs" rule.  Ryder J  also accepted that in any event, as was made clear in AH [2011] EWHC 276 (COP) at [69] 'bad faith' or 'flagrant misconduct' is not a condition precedent to justify a departure from the normal cost principle, "…[this]…is a case where there has been no bad faith or flagrant misconduct, but there has been substandard practice and a failure by the public bodies to recognize the weakness of their own cases and the strength of the cases against them.  In such circumstances they cannot invoke rule 157 at the expense of others…".  

Ryder J acknowledged that the local authority had made appropriate concessions at an early stage but concluded that:-

:a) the local authority's actions were tainted with illegality

:b) the local authority's decision making was impoverished and disorganised

:c) the local authority was responsible for the delay in referring CP's circumstances to the Court of Protection and/or the High Court in its children and inherent jurisdictions

:d) the local authority could have arrived at the position concluded by the court many months earlier.

As a result, the local authority should pay LPM's costs to be assessed if not agreed.

This case also provides useful guidance as to the appropriate jurisdiction to be invoked by a Local Authority where the subject of the application is a minor.

Summary by Alison Easton, barrister, Coram Chambers