Re RC (Deceased); SC v LB Hackney [2010] EWHC B29 (COP)

LBH had successfully applied for a property and affairs LPA to be declared invalid and for residence orders; costs were awarded against the donee, SC; the costs order was appealed; subsequently RC died. (1) The court could hear the appeal against costs (but not other issues) after RC's death under its residual jurisdiction; this was so despite the only relevant rule being narrower in scope than to allow this. (2) The judge was wrong to hold that "the LPA was a personal welfare LPA, and therefore its general rule would fall within rule 157". (The general rules are rule 156, that P pay for property and affairs proceedings, and rule 157, that there be no order for costs in personal welfare proceedings.) (3) As a general rule the incidence of costs in cases where there is an LPA for health and welfare should not necessarily differ from the rule in property and affairs cases, subject to the provisions of rule 159 (departure from general rule if justified in circumstances). (4) Reservations were expressed about the manner in which the LPA was declared to be invalid; also, contrary to the judge's findings, SC did not provoke all the issues which she lost. (5) As well as being wrong, the costs decision was unjust: SC was not properly forewarned about the possibility of an adverse costs order; the judge did not consider SC's ability to pay; he did not fully consider the nature of the relationship between SC and RC and the fact SC acted in good faith; the judge was wrong to say this was an exceptional case, as although litigants like SC would try the patience of a saint they were not untypical in the Court of Protection. (6) Accordingly, the general rule (r157) should apply and the court should only depart from the general rule where the circumstances so justify, for instance clear bad faith, where there has been a careful costs warning and a consideration of ability to pay. (7) The order that SC pay LBH's costs was set aside and in its place no order for costs was made.

Comment

Whilst it is not entirely clear from the judgment of the Senior Judge, it must flow as a matter of logic that he concluded that (1) Rule 157 applied in respect of those aspects of the proceedings in respect of which LBH sought their costs which did not concern the LPA (and hence that LBH was not entitled to their costs because the general rule in personal welfare proceedings applied); and (2) as regards those aspects which did concern the LPA, Rule 156 should have applied (and, hence, that LBH was not entitled to its costs because Rule 156 did not make provision for an objector's costs to be paid by the donee). Otherwise, his judgment would contain a major logical flaw. This judgment is of assistance in clarifying the costs position regarding disputes concerning personal welfare LPAs, and also in making clear the circumstances under which the general rule in personal welfare proceedings other than those concerning LPAs will be displaced - the need for giving a clear costs warning is one that is particularly significant.

External link

Not on Bailii a time of writing

Transcript on OPG website - marked "Re C (an order of the Senior Judge made on 5 August 2010) - Important"