View source for Transcript of Re Clarke (2013) EWCA Civ 811, (2013) MHLO 52

Case No: B4/2013/0087

Neutral Citation Number: [2013] EWCA Civ 811

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COURT OF PROTECTION

(MR JUSTICE PETER JACKSON)

Royal Courts of Justice

Strand

London WC2A 2LL

Thursday, 6 June 2013

Before:

LORD JUSTICE McFARLANE

Between:

AC

Applicant

--and--

THE COURT OF PROTECTION

Respondent

(DAR Transcript of

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The Applicant's son appeared via video link on her behalf

The Respondent did not appear and was not represented

JUDGMENT

(Approved)

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1.     Lord Justice McFarlane:

1.     This is an application for permission to appeal made by Mr C, who is the son of a lady whose affairs have been under consideration within proceedings in the Court of Protection. Mr C seeks to appeal against the determination made by Peter Jackson J, sitting in the Court of Protection on 24 October 2012, in relation to costs and a further application for an adjournment that Mr C had made at the conclusion of the main proceedings. His Notice of Appeal is dated 19 January 2013, and for the purposes of this hearing I have obviously read the three judgments (as they are) by Peter Jackson J, together with the Grounds of Appeal, skeleton argument and subsequent documentation Mr C has put in.

2.     Matters have progressed since the hearings before Peter Jackson J in October in that there has been for some time an injunction in place against Mr C prohibiting him from publicising matters to do with this case. It is apparent from what Mr C has put in in writing to this court and what he has said to me today that a hearing took place on 14 January 2013 before Judge Pelling, sitting in Manchester, where an application was made to commit Mr C to prison for breach of that injunction. Mr C was not in attendance at that hearing. Some representatives of his apparently attended, and it resulted in the judge finding breaches proved and passing a sentence of three months' imprisonment for the breaches of the injunction that were found.

3.     Mr C and his mother (he is his mother's carer) have homes both in Spain and a home available in Blackpool. As a result of Judge Pelling's order, Mr C has decided to remain in Spain and so he has joined this hearing over a telephone link this morning. I have rehearsed what apparently happened in January in relation to the injunction and the contempt proceedings partly to explain why this is a telephone hearing, but also to set the context for one of Mr C's applications before me today, which is to point out the fact that he wishes to appeal against the committal proceedings conducted by Judge Pelling in January but he says he has been thwarted in preparing the paperwork for that potential appeal by the absence of a transcript, which has only in the last day or so become available to him, and he therefore requests me to postpone considering his permission to appeal application in relation to Peter Jackson J's order until both applications can be before this court. In fact, any application to appeal the committal process will not need permission to appeal. It is something that he, if he wishes to, can bring as an appeal as of right. But he argues strongly down the telephone line to me this morning that these matters are inextricably linked and that really if they are going to come to the Court of Appeal they all ought to be heard together.

4.     Turning to the substantive matter, which is the primary application today relating to Peter Jackson J's orders, the substantive application before the Court of Protection had been issued by Mr C in order to seek the discharge of a deputy who had been appointed (or in fact converted into deputyship) way back from 2001 in relation to his mother's affairs. His mother tragically was seriously injured in a road traffic accident in 1995 and received substantial damages, but a receiver and then subsequently a deputy, always the same individual (Mr Jones), had been appointed to administer her affairs. Mr C applied for the discharge of Mr Jones.

5.     The result of the process was, first of all, an evaluation through psychiatric assessment and then determination by the judge of Mrs C's capacity to make certain decisions and, as a consequence of that determination, the learned judge deciding that she lacked capacity to decide whether or not the house in Blackpool should be sold. That therefore fell to be an issue to be determined by the Court of Protection. The judge decided that the house should not be sold. The house was really the only asset that remained of the assets that Mrs C owned, and all agreed that if the house was not to be sold, there was really no continuing role for the deputy, and so the deputyship was in fact discharged. So the application Mr C made succeeded in that respect.

6.     The question then arose as to how the costs of those proceedings should be met. Mr C did not qualify for legal aid, nor did his mother. He tells me he tried to obtain legal representation but was unable do so. The other parties, who were Mr C's two siblings and secondly the deputy, Mr Jones, were legally represented, and those two respective constituencies each sought their costs and argued that the costs should be paid for out of the estate. Mr C argued that they should not be.

7.     In the period after the conclusion of the substantive determinations in the case, which were initially determined by Peter Jackson J on 31 July 2012 but finally determined by him on 9 October, in the period after 9 October Mr C also applied for the Court of Protection to adjourn the conclusion of the proceedings and direct that there be full disclosure of every material document in the possession of the Court of Protection (Judge Lush, who had had conduct of these matters in earlier times) and of all of the documentation and detailed accounts of the activities and financial transactions undertaken by Mr Jones during his time as deputy.

8.     In a short judgment given on 24 October, Peter Jackson J refused those applications. He dismissed them, it seems to me, although his judgment does not go into detail, because they were not the subject of any formal application before the court. The application was to discharge the deputyship. That had been dealt with. This was really a fresh matter and the judge took the view that this was a limited estate. The assets were limited, and earlier decisions, for example whether or not the expert psychiatrists should meet or whether there should be a further assessment, had been refused by the judge in order to keep the costs to a minimum and determine the issue promptly and efficiently. It seems to me that the same thought process was in play in Peter Jackson J refusing to entertain a further adjournment which would have opened up completely fresh issues about disclosure of documents and proper accounting.

9.     It seems to me on that point the judge was entitled to take that view and, because there was no formal application for that process of account, as it were, before the court, he was almost bound to take that view. It remains open to any party to question someone such as Mr Jones, who has been in a fiduciary position, to give a proper account. I do not know; I have not seen any accounts and I do not know whether it is possible to say that those are proper accounts that have been produced thus far or not. Mr C very firmly tells me that anything that has been disclosed to date is an inadequate account. But that is a matter for a separate process. I neither encourage Mr C nor disencourage him. I simply point out that it is open to him to take that up if he wishes to in a different, separate process.

10.     So the point I need to focus on is the judge's costs decision. He approached it in conventional terms. He pointed to rule 156 of the Court of Protection Rules, which establishes the default position on costs issues and states that the general rule is that the costs of the proceedings, if they concern the patient's property and affairs, should be paid for by the patient or charged out of his or her estate. Then rule 159 indicates the sorts of factors the court might have in mind if it decided to depart from that general rule.

11.     Stepping back, it is right to observe that any decision by a judge as to the costs of any case (in the Court of Protection or ordinary civil litigation) is one over which the judge has a very wide discretion and is not normally the stuff of an appeal to the Court of Appeal unless the judge is plainly wrong in his determination or has applied some approach which is not permissible as a matter of law or the court rules. So it is a high hurdle that any applicant in Mr C's position has to surmount in trying to commence a costs appeal.

12.     The judge did not depart from the general rule and he said this at paragraph 5 of his judgment:

"In this case there is no basis for departure from the general rule. My overall conclusions in relation to [Mrs C's] capacity did not favour any party. While the sale of the Blackpool property has not been ordered at this time, the manner in which [Mr MC] has conducted the proceedings more than wipes out any weight that might be attached to that factor. I identify his use of his mother's case as a vehicle for his political views, his aggressive disrespect towards anyone with whom he disagrees, and his complete lack of regard for his mother and family's right of privacy.”

13.     On that basis, the judge therefore applied the general rule, ordered that the costs of the family members and of the deputy should be paid out of the estate and went on to assess those in finite terms in his judgment. It is against that judgment that Mr C now seeks permission to appeal.

14.     In the course of explaining his case to me this morning, Mr C has reverted to his position as it apparently was before Peter Jackson J, which is that he did not accept that that court had any jurisdiction in these matters, or certainly no jurisdiction to go about determining the questions in the way that the court did: first of all in private and secondly by applying the Mental Capacity Act rather than the common law, which Mr C says should have been applied, and Mr C wanted the issues determined by a jury rather than by a judge. The earlier judgments of Peter Jackson J give some colour to the description of Mr C's general approach to the court, the officials, the deputy and the other parties in the way in which he conducted the litigation. So although obviously I was not the judge and was not in the court room, I have some feel and understanding of what it is Peter Jackson J is referring to in paragraph 5 of his judgment. It seems to me that those were matters that the judge was entitled to take into account.

15.     Mr C is entitled to his view, but, as a matter of law, his view as to the application of the common law to these issues, the validity of the Court of Protection and the availability of a jury to try these issues is just plain wrong. It is legally not sense, and, insofar as the court was occupied and the other parties were occupied in spending costs in fighting the case being put up by Mr C on that basis, those were monies spent by them without any need, generated entirely by Mr C's approach to the proceedings. That is just one example of the bigger picture that Peter Jackson J paints. I therefore consider that Peter Jackson J was entirely within his discretion in making the costs orders that he did, and it is totally unappealable now.

16.     I have considered whether or not it is sensible and fair to postpone this permission application so that it comes together with the appeal that he intends to mount against the committal order and I have considered that, as I have said, in the context of the fact that, if he does mount an application to appeal the committal, that will come and will not need permission. But given that I consider that there is really no merit in the potential appeal that he seeks to make against the costs order and the refusal of the adjournment, I think it adds nothing other than to continue to additionally complicate matters to adjourn today's application to await the committal appeal.

17.     I therefore refuse permission to appeal in relation to the matters that are before me this morning in his potential challenge to the determinations made by Peter Jackson J on 24 October 2012.

Order: Application refused