Analysis
This is an appeal from a judgment of Baker J [2010] EWHC 3385 (Fam) making an award of costs at the conclusion of long-running proceedings in the Court of Protection. The costs related to an interim hearing lasting eight days from January through to March, and, following judgment on 26 March 2010 ([2010] EWHC 621 (Fam)), a further hearing on 6 May 2010. In respect of costs, the judge said:
‘In all the circumstances, I conclude that this is a case for departing from the general rule set out in r157 of the Court of Protection Rules, and I make an order in the following terms:
- 1. That the local authority should pay the costs of G, F and E, including pre-litigation costs, up to and including the first day of the hearing before me on 14 January 2010 on an indemnity basis.
- 2. The local authority shall pay one third of the costs of G, F and E from that date up to and including the hearing on 6 May 2010 on a standard basis.
- 3. All costs will be subject to a detailed assessment, if not agreed.’
The appellant local authority submits that the departure from r157 was wrong as this was a typical or paradigm Court of Protection case and that the judge should not have made an order apportioning costs. If wrong about that, the appellant submits the only order that should have been made was a limited order against the appellant in respect of the costs incurred by the respondents up to and including the first day of the hearing on 14 January 2010. E comes from a troubled family. G is his elder sister. E was placed with F in respite care in 1995, aged four, and finally accommodated with her on a full-time basis in 1999 under s20 Children Act 1989. The proceedings related to care decisions taken by the appellant.
Held (Hooper LJ, Mummery LJ and McFarlane J agreeing):
- 1) The judge was correct not to treat this as a typical case. As the judge set out, the local authority misconducted itself by blatantly disregarded the processes of the MCA and the obligation to respect E’s rights under the ECHR. Its conduct up to the start of the hearing when it conceded the issue of unlawful deprivation of liberty was unreasonable so as to give rise to costs on the indemnity basis. The judge rightly rejected the argument that a costs order should not be made because the legislation pertaining to ‘deprivation of liberty’ was complex and new. Further, the appellant’s conduct would have infringed E’s ECHR rights under the old law as well as under the MCA.
- 2) He was also correct to find, while some form of court proceedings would in any event have been required, that the hearing would have been shorter and less complex than they were by the time of the hearings in January to March 2010. The ‘best interests’ analysis would have been less complicated and had the appellant followed the proper procedure, G’s role in proceedings would have been much more peripheral. It was unlikely she would have had to instigate proceedings and take the lead in establishing unlawful deprivation of E’s liberty. In those circumstances, and given those factual findings, the judge was entitled to depart from the general rule.
- 3) As to the secondary argument that the costs apportionment after the first day was wrong, the judge met that point by reference to the additional complexity and length of proceedings – caused in his ruling – by the appellant’s conduct in failing to follow proper procedure.
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