Re JBN [2020] WTLR 563

WTLR Issue: Summer 2020 #179

In the matter of: JBN

THE PUBLIC GUARDIAN

V

DJN

Analysis

The Public Guardian applied to revoke a lasting power of attorney (LPA) for property and affairs appointing DN as attorney for his father, JN. The application was brought on the basis that the Public Guardian was concerned that DN had not acted in JN’s best interests by selling JN’s residence and transferring most of the proceeds to himself (DN), and by mixing their finances by operating a joint account.

The Public Guardian was particularly concerned that JN’s care costs were in jeopardy and therefore invited the court, when considering the application on paper, to suspend DN’s attorneyship and appoint an interim deputy. A district judge duly made an interim order suspending the LPA and ordering DN not to exercise any of his powers under it, and directed the appointment of an interim deputy.

DN contested the substantive application on the basis that JN had had capacity at all relevant times. At the final hearing, the Public Guardian’s application was dismissed, DN was restored to the running of JN’s financial affairs under the LPA, and the interim deputy’s appointment was discharged.

DN then applied for payment of his costs by the Public Guardian. He argued that the Public Guardian should have restricted his approach to an inquiry into the only matter in dispute, JN’s capacity, and that in fact there was never really evidence to rebut the presumption of capacity. DN also criticised the Public Guardian’s stance toward settlement, and particularly evidence from the Public Guardian’s investigator that there was a policy not to negotiate and the refusal of his proposal for settlement.

Held (allowing the application in part):

An application for costs must be considered on its own merit with a clear appreciation that there must be a good reason before the court will depart from the general rule in r19.2 Court of Protection Rules 2017 (COPR 2017) that the costs of proceedings concerning P’s property and affairs should be paid by P or charged to P’s estate (London Borough of Hillingdon v Neary applied). Caution must be taken with older cases decided under other rules and rules which are of only limited assistance (D v R and S applied).

It was clear at the outset that the ‘real issue’ was JN’s capacity when his property was sold. The Public Guardian should therefore have reviewed the capacity evidence before commencing proceedings. Had he done so, he would have concluded it was very weak. Nonetheless, he commenced proceedings solely on the basis of a desktop evaluation. This led to proceedings which went beyond what was necessary or reasonable. Additionally, given the deficiencies in the capacity evidence, the Public Guardian then should have invited DN to agree to a joint expert being instructed to consider the matter pre-issue, or he could have asked the court to adjudicate only on the issue of capacity. Instead, he embarked on litigation seeking a range of reliefs and orders.

It was particularly concerning that the Public Guardian had sought without notice orders of a very serious nature, namely the suspension of the LPA and appointment of an interim deputy. This approach ignored the fact that DN was co-operating and had offered to place monies into an account to cover care costs. At the very least, the application for interim orders should have been made on notice to DN, in which case the court would have had a fuller picture and the case could have been directed on a path to address the real issues that arose. The interim orders led to acrimonious litigation which were expensive and achieved next to nothing for JN.

In addition, the Public Guardian adopted what seemed to be a standard approach to litigation based on his approach to other cases. This was a failure to comply with the overriding objective in r1.4 COPR 2017. This was also strange given that JN had told the special visitor that he was upset by the investigation.

These matters amounted to a good reason to depart from the normal costs order. An order was therefore made that the Public Guardian should not be entitled to be paid his costs from JN’s funds and that he should pay 50% of DN’s costs.

DN’s offer did not address the real issue of concern to the Public Guardian (JN’s capacity). It was therefore not unreasonable for them to reject it. Neither was it unreasonable for them to refuse adjournments. These, the fact that DN’s health had suffered and that he had decided not to visit JN during the litigation to avoid further allegations, and his general distress, were not matters justifying a departure from the normal costs rule.

The Public Guardian’s investigator gave evidence that the Public Guardian’s policy was not to negotiate in any case. This was contradicted by the Public Guardian’s counsel. The Public Guardian was therefore ordered to clarify his position. An addendum to the judgment records that he later filed a statement confirming that he does not have a general policy of not negotiating.

JUDGMENT HHJ MARIN: [1] On 22 November 2017, the Public Guardian applied to the court to revoke a lasting power of attorney for property and affairs (‘the LPA’) made two years earlier by JN, a gentleman who was then 78 years old. JN had appointed his son DN as his attorney. [2] The application was …
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Counsel Details

Barbara Rich (5 Stone Buildings, Lincoln’s Inn, London WC2A 3XT, tel 020 7242 6201, e-mail clerks@5sblaw.com), instructed by the Public Guardian (PO Box 16185, Birmingham B2 2WH, tel 0300 456 0300, e-mail customerservices@publicguardian.gov.uk) appeared on behalf of the claimant.

Helen Galley (XXIV Old Buildings, Lincoln’s Inn, London WC2A 3UP, tel 020 7691 2424, e-mail clerks@xxiv.co.uk), instructed by Gordons (Winter Hill House, Marlow Reach, Station Approach, Marlow SL7 1NT, tel 01628 487487, email enquiries@gordons-law.co.uk) appeared on behalf of the defendant.

Cases Referenced

  • D v R and S [2012] CoPLR 154
  • G v E (Costs) [2011] 1 FLR 1566 London Borough of Hillingdon v Neary [2011] EWHC 3522 (Fam)
  • Manchester City Council v G and F [2014] WTLR 449
  • Re Cathcart [1893] 1 Ch 466

Legislation Referenced

  • Court of Protection Rules 2017 rr1.4, 19.2, 19.5
  • Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2017 Regs 43 and 46
  • Mental Capacity Act 2005 ss51, 55, 58