View source for Transcript of DO v LBH (2012) EWHC 4044 (Admin), (2012) MHLO 165

<pre>                                   CO/7377/12



Neutral Citation Number: [2012] EWHC 4044 (Admin)


IN THE HIGH COURT OF JUSTICE


QUEEN'S BENCH DIVISION


THE ADMINISTRATIVE COURT



                            Royal Courts of Justice




                                     Strand




                                London WC2A 2LL




                           Thursday, 23rd August 2012









                                  B e f o r e:




                           HIS HONOUR JUDGE JARMAN QC




                     (Sitting as a Deputy High Court Judge)









                                    Between:




                       THE QUEEN ON THE APPLICATION OF DO




                                    Claimant




                                       v




                           [LBH]




                                   Defendant









              Computer‑Aided Transcript of the Stenograph Notes of




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                   (Official Shorthand Writers to the Court)








The Claimant was represented by his Litigation Friend (EC) and did not attend in
Person


Mr D Holbrook (instructed by [LBH] Legal Service) appeared on behalf of
the Defendant








                                J U D G M E N T




                           (As Approved by the Court)









                                Crown copyright©
</pre>







1.     THE DEPUTY JUDGE:  I have before me listed two applications for
permission to bring judicial review proceedings and/or for directions against a
local authority (LBH) and another interested party, ostensibly in the name of
DO, by his sister (EC), the applicant as his Litigation Friend in one of the
applications and by both as claimants in respect of the other.


2.     As a number of applications have been made by EC, who appears before me
this morning, I ordered her to be substituted as claimant in both proceedings,
so that she is the sole claimant in those proceedings and I gave my reasons for
that.


3.     I am using initials because there are ongoing Court of Protection
proceedings in which all of the parties have been ordered to be identified by
their initials.  There is also a similar order in respect of DO in the third
application.  I also order the same procedure in these applications.


4.     All of the applications relate to the care of DO, who has been diagnosed
with ongoing paranoid schizophrenic illness (although EC does not accept such
diagnosis) and also a degenerative disorder.


5.     In recent years, EC says for 19 years, she has cared for her brother and
for his children.  In December 2011, however, LBH decided that his best
interests were served by moving him into a care home in which his needs could be
met.  That was effective in December 2011, when DO was moved to A Court.


6.     EC completed an application for judicial review of that decision, on the
basis that it was unlawful, and for interim relief.  That application was filed
on 23rd February 2012.  I refer to it as the "first" claim.


7.     The applications were dismissed on 2nd March 2012 by Coulson J after
hearing EC.  The judge on that occasion certified the claim as wholly without
merit and one which EC was not entitled to bring.  She objected to her brother's
residence at A Court and accordingly LBH had to apply to the Court of Protection
for orders under the Mental Capacity Act 2012 in order to determine the capacity
of DO to make personal welfare decisions and to decide where he should live and
how he should be cared for.  On 11th April 2012 an interim order was made by the
judge of that court that DO should continue to be cared for at A Court until
further order.


8.     On 11th May 2012 a second claim for judicial review, one of the claims
before me, was signed by EC and filed in the Administrative Court, seeking
orders, amongst a number of others, that she could continue to care for her
brother because she is his legal carer and does not need the permission of the
Court of Protection to exercise her duties.  The case was put on a number of
alternative legal bases, referring to various Articles of the European
Convention of Human Rights, the Access to Justice Act, the Data Protection Act,
the Mental Capacity Act, the Disability Legislation and the Health and Social
Security Act.  No acknowledgement of service was filed in that claim and no
orders have yet been made.


9.     On 15th May 2012 there was a further hearing in the Court of Protection.
LBH indicated that it was likely to apply to move DO to another placement and
the court ordered the Official Solicitor to be joined as DO's Litigation Friend,
the Official Solicitor having consented so to act.


10.     EC lodged an application for permission to appeal that decision.  On 26
July 2012 that application was refused on paper as being totally without merit,
with no right of renewal.


11.     On 27th June 2012 there was a further hearing in the Court of Protection
which EC attended.  The court declared on an interim basis that it continued to
be in DO's best interests to reside at A Court.  It was ordered that EC should
be joined in those proceedings as the third respondent.  The local Primary Care
Trust, which I shall refer to as NPCT, had already been joined.


12.     However EC's application to become her brother's Litigation Friend and
for a declaration that the Court of Protection had no jurisdiction in the matter
were both dismissed as being devoid of merit.  Directions were given as to
evidence and for a further hearing in July.


13.     On 13th July 2012 a third claim form for judicial review against LBH was
lodged in the Administrative Court signed by EC, again relating to the care of
her brother.  The decision to be reviewed was specified as both "failing to act
and "acting without skills and competence and recklessly to mention a few".  A
number of different orders were sought including the extension of time to file
medical evidence.  That was on the basis that EC is of the strong view that the
appropriate course is for DO to be taken to Germany to have a correct diagnosis
and treatment of his illness.  It had also sought to stay any further move away
from EC as DO's carer.  It was stated that reliance would be placed on the
documentation filed in support of the first and second claim amongst other
matters.  Again, no acknowledgement of service has been served in respect of
that claim.


14.     On 16th July 2012 there was a further hearing in the Court of Protection
again in which EC appeared.  The order records that the court had read
statements filed and the care and contingency plans file relating to the
proposal of DO to a hospital known as St Andrews in Northampton.  The court
declared in the interim that it was in DO's best interest to move to that
hospital as soon as practicable.


15.     It was ordered that NPCT should become the applicant and LBH should
become a respondent with permission to take no further part in those
proceedings.  The NPCT was ordered      to arrange for a report under section 49
of the Mental Health Act 2005 to be provided by the hospital to cover the
diagnoses and progress of the illnesses of DO and his capacity to make decisions
in respect of his residence and care in time for the next hearing which has been
set for 19th October 2012.  EC tells me there is a further application to the
Court of Appeal in respect of that order.  The court however itself has refused
permission to appeal and an order for a stay pending appeal was also refused.


16.     On 19th July 2012 an order was made in the third claim by His Honour
Thornton QC, refusing EC permission to permit EC to act as DO's litigation
friend without further order. He referred to the proceedings as misconceived and
ill constituted because any review of the Court of Protection orders should be
made by way of application of that court order or that appeal.  He directed that
no further steps be taken in that claim, save for the service by the Official
Solicitor of the letter sent to the court.  He further ordered that the papers
were then to be resubmitted to the judge to give further direction including
whether a copy of any such letter should be provided to EC.  Permission was
given to EC to apply further by letter and a direction that she would be sent a
copy of the court's direction and decision following a reconsideration of the
papers.  No such letter has been received by the Administrative Court from the
Official Solicitor.


17.     On 15th August 2012 EC contacted the court to say it was unreasonable
for the two cases not to be heard today on the 23rd August because there was no
reason on which to refuse the cases to proceed.  On 17th August 2012 she made
her application to be added as the claimant which I have dealt with.  On 21st
August 2012 LBH applied for a general restraint order against EC.  She says this
morning that was not received by her and Mr Holbrook on behalf of LBH accepted
there may be short service and accordingly did not seek to pursue that
application today.  Having dealt with a number of preliminary applications by
EC, I then went on to consider whether permission should be given to proceed
with the second and third claim.


18.     This oral application was listed in unusual circumstances, where no
acknowledgement of service was served in either the second or third claim and
where the issue of permission has not been considered on the papers in the usual
way. In my judgment, despite the multi various grounds relied upon and the
relief sought in these claims, at the heart of them was the same issue which
lays at the heart of the first claim, whether it is EC who should be caring for
her brother and making decisions on his behalf as to accommodation, care and
treatment or whether such decisions should be taken by others.  These are
questions, in my judgment, which are also crucial in the ongoing Court of
Protection proceedings in which EC is a party and in which she can and does make
her representation.  These are questions, in my judgment, which the Court of
Protection with its expertise is particularly suited to deal with.


19.     The discretionary remedy of judicial review is one of last resort where
there is no other remedy available.  In my judgment it is not usually
appropriate for such proceedings to continue in tandem with Court of Protection
proceedings where in essence the same questions are being considered.  There is
nothing in the grounds of the second or third claim in my judgment, which makes
the grant of permission to proceed appropriate.  EC may not agree with the order
being made in the Court of Protection proceedings but that does not justify, in
my judgment, proceeding by way of judicial review rather than by application or
appeal in the Court of Protection proceedings.


20.     In making her oral submissions EC mentioned a further consideration and
that is her claim that she has worked for LBH as DO's carer for a number of
years and has outstanding claims for unfair dismissal and breach of contract.
She made a claim to the Employment Tribunal for such remedies amongst others.
The Employment Tribunal heard that claim on 9th July 2012.  They dismissed all
of the claims and ordered EC to pay the costs.  She tells me today that
yesterday or the day before she has filed an appeal to the Employment Appeals
Tribunal in respect of that finding.  Again, it seems to me that the course open
to her in respect of those claims lies in other courts and other jurisdictions.


21.     Whilst I can sympathise with EC's concern over the welfare of her
brother, which is clearly genuine and passionate, in these unusual circumstances
and despite the lack of acknowledgement of service, in my judgment it is
appropriate just and proportionate to refuse permission in the second and third
claims and certify them as wholly without merit.


22.     THE DEPUTY JUDGE:  Mrs C, if you wish to speak to Mr Holbrook about the
matter I raised about assistance in getting telling to Northampton ‑‑


23.     THE CLAIMANT:  Your Honour I'm appealing that decision.  I am appealing
the decision your Honour.  I am appealing it straightaway.


24.     THE DEPUTY JUDGE:  That is your prerogative Mrs C.  Is there any other
application?


25.     MR HOLBROOK:  My Lord, yes.  First of all, on the question of costs, can
I ask the costs of these two applications be adjourned to be dealt with at the
hearing of the application?


26.     THE DEPUTY JUDGE:  You have heard Mrs C is on Income Support.


27.     THE CLAIMANT:  Not only that your Honour ‑‑


28.     THE DEPUTY JUDGE:  Just a moment, I will come to you in a moment. Does
the Council really wish to pursue costs.


29.     MR HOLBROOK:  My Lord, yes, having got an order, if it gets an order
from the court it is up to the Council to decide whether or not to enforce it.


30.     THE CLAIMANT:  Your Honour they are not entitled ‑‑


31.      THE DEPUTY JUDGE:  Mrs C I am going to give you a chance in a moment,
let me hear what Mr Holbrook is going to say.


32.     MR HOLBROOK:  It will no doubt consider all matters before deciding to
enforce.


33.     THE DEPUTY JUDGE:  I hope it has considered all matters before deciding
to apply for them.


34.     MR HOLBROOK:  I am sorry my Lord?


35.     THE DEPUTY JUDGE:  I hope it has considered all matters before deciding
to apply for an order for costs.


36.     MR HOLBROOK:  My Lord, yes, but there is nothing to prevent a local
authority from getting a costs order against ‑‑


37.     THE DEPUTY JUDGE:  I am not saying there is anything to prevent it, it
is a question of whether in all these circumstances, with all the difficulties
and all this litigation, it is going to help anyone.


38.     MR HOLBROOK:  My Lord, let us for the sake of argument suppose that this
claimant has resources that this court does not know about.


39.     THE DEPUTY JUDGE:  Does the London Borough have any inkling that that
may be the case?


40.     MR HOLBROOK:  My Lord, I do not particularly wish to discuss matters
like that today because I do not think that will be helpful for the further
ongoing relationship that obviously needs to exist.


41.     THE DEPUTY JUDGE:  Quite.


42.     MR HOLBROOK:  But the point I am making is if a costs order is obtained
by [LBH] then they may at sometime in the future discover this claimant have
some resources.


43.     THE DEPUTY JUDGE:  There is no application for costs before me, there is
none in the acknowledgement of service because none has been filed.  If a
respondent to a claim for permission for judicial review wishes to apply for the
costs which are usually limited to the acknowledgement of service, the usual
place is to ask for them in the acknowledgement of service.


44.     MR HOLBROOK:  I appreciate that.  Earlier this morning I did make the
point that the third judicial review claim has been stayed in any event and you
have already recited in your judgment how the matters which are brought in the
second and third claim are essentially the same as those which have been dealt
with in the first claim.


45.     My Lord, I am not asking you to make an order for cost, all I am asking
you to do is adjourn the question of costs.


46.     THE DEPUTY JUDGE:  Where is the question of costs before me Mr Holbrook?
There is no indication anywhere that such an application is going to be made.


47.     MR HOLBROOK:  I make the application orally.


48.     THE DEPUTY JUDGE:  You made the application orally for me to adjourn it.



49.     MR HOLBROOK:  My Lord yes.  If I leave court today with nothing in the
order about costs, then under the rules that order will be deemed as being no
order being made.


50.     THE DEPUTY JUDGE:  Why was not an application made and why was not Mrs C
put on notice of such an application.


51.     MR HOLBROOK:  One always has to be mindful of the costs involved in
dealing with these matters which I am bound to say, the costs which a local
authority like [LBH] had to so far expend dealing with claims which you and a
number of judges certified as wholly without merit, I submit is already been
wholly disproportionate.


52.     I am merely asking you now to adjourn the question of costs.


53.     THE DEPUTY JUDGE:  I am asking you why was this not put to Mrs C and why
was she put on notice of any such application.  I have not had an answer yet?


54.     MR HOLBROOK:  My Lord the answer is because the local authority wishes
to conserve its resources and that is why it did not respond to the second and
third claims, other than by putting in an application for a civil restraint
order.


55.     I only wish deal with one outstanding matter together.  There is that
question of cost.  There is a second question about when the CRO matter is going
to be dealt with.  I do not know if it is possible for you today, or possibly
for someone in court to make contact with the Administrative Court Office to get
a hearing date possibly next week so that the claimant can leave court knowing
that matter ‑‑


56.     THE DEPUTY JUDGE:  Have you made enquiries as to availability?  Mrs C
said she has not been served with anything.


57.      THE CLAIMANT:  I have not been served with anything since December.
Nothing.  I have nothing from them since December.  It is foreseeable that I
will come to court, there is no representation from them, there is no service by
them and it is in breach of court rules for them to make me penniless, not to
respond, no acknowledgement of service.  On the 23rd February, no
acknowledgement of service, no documentation, even at the employment law, they
have not responded.


58.     THE DEPUTY JUDGE:  Mrs C, I am sorry to cut you but I am not going to
list this application until it has been served and it is a certificate of
service.


59.     MR HOLBROOK:  My question is only whether the court could make some
enquiries to see if this matter be listed at a hearing date next day.


60.     THE DEPUTY JUDGE:  Have you made enquiries?


61.     MR HOLBROOK:  I have not.


62.     THE CLAIMANT:  I will need a solicitor.


63.     THE DEPUTY JUDGE:  I am not prepared to make enquiries Mrs C in the
circumstances where you have not and whereas as I say I would need to be
satisfied the application has been served.


64.     MR HOLBROOK:  That brings me to the third point. That relates to the
question of service.  You heard me say this morning the papers were served by
first class post on Tuesday.  There are also enquiry agent went round to the
claimant's but was not able to get a response.


65.     THE DEPUTY JUDGE:  Is there an affidavit to that effect?


66.     MR HOLBROOK:  What I was going to invite you to do, my Lord, is record
on the court order today, that if my solicitor hands the bundle of papers which
he attempted to give her this morning, he hands papers to her, that you could
record in the order that service has been effective.


67.     My Lord, one of the reasons I ask for that is that because it is clear
from the orders which have been made by the Court of Protection that service of
documents has proved difficulty with this litigant.  Indeed you may have seen
the Court of Protection how it was directed she should go to the local authority
offices to pick up the papers in order to ensure service was effective.  I
understand that did not happen, that the local authority had to take the papers
in any event to the Court of Protection.  But my Lord, it may be if the claimant
is prepared to say here and now that she would accept a further copy of the
bundle of papers which I have in court today.


68.     THE CLAIMANT:  Your Honour, service of any document has not been a
problem, what has been a problem is lack of service.  They have not ‑‑


69.     THE DEPUTY JUDGE:  Mrs C, what Mr Holbrook is offering to do now is hand
you the application in respect of the civil restraint order now so that there is
no problem, no doubt about service.


70.     THE CLAIMANT:  Your Honour, I would prefer it to be put in the post and
with honest belief that they have posted if I have nobody ... I cannot hang in
the house thinking maybe somebody is going to post a letter to me, I cannot do
that.


71.     THE DEPUTY JUDGE:  Is it not better you simply accept it being handed
over today?


72.     THE CLAIMANT:  Your Honour, I cannot sit at home thinking: is somebody
going to post letter?  Their argument is unreasonable because they have not
justified any claim, there is no evidence in front of the court that they have
sent any application.  There is no evidence in front of the court and they are
always like that.  They can post it, they can post it and then I will be on the
lookout because I have a legitimate expectation.


73.     THE DEPUTY JUDGE:  Why not receive it today?


74.     THE CLAIMANT:  Because I cannot carry that as part of my ... they can
send it.  Now I know that a letter is coming to me.  My address is 16 T Square.


75.     THE DEPUTY JUDGE:  I am not prepared to make an order forcing Mrs C to
accept today.  It will have to be certified and served in usual way.


76.     Mr Holbrook is there anything else you wish to say about costs?  I have
to say in circumstances where no such application has been made it will usually
be limited to the costs of the acknowledgement of service, there are no
acknowledgement of service.  In those circumstances, unless you wish to press me
further I am not inclined to adjourn any oral application made today.  (Pause).


77.     MR HOLBROOK:  My Lord I will not push it any further.


78.     THE DEPUTY JUDGE:  There will be no order as to costs. I am not ordering
you to pay cost.


79.     THE CLAIMANT:  I am very grateful your Honour. They have not served the
court any document, they have not served any court document.  It is
unforeseeable to file application and without response and they are demanding
for money and they have made me penniless.  So they are coming to court after
they have made me penniless, I can't see my brother, they have hijacked my
brother and they are demanding money.  This is part of their abuse.


80.     THE DEPUTY JUDGE:  I have not made that order.


81.     THE CLAIMANT:  I will be appealing this order immediately.  Especially
the ones that are not... Thank your Honour.