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England and Wales Court of Protection Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> N & Anor v E & Ors [2014] EWCOP 27 (15 August 2014) URL: http://www.bailii.org/ew/cases/EWCOP/2014/27.html Cite as: [2014] EWCOP 27 |
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42-49 High Holborn London WC1V 6NP |
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B e f o r e :
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Re E N and S |
Applicant |
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- and - |
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E (1) - and - M (2) - and - Others (3) |
Respondents |
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Ruth Hughes (instructed by the Official Solicitor) for the 1st Respondent
Jordan Holland (instructed by Charles Russell) for the 2nd Respondent
The 3rd and 4th Respondents did not appear and were not represented
Hearing date: 5 August 2014
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Crown Copyright ©
Senior Judge Lush:
The background
(a) to compel M to deliver up E's passport and not remove her from England;(b) to suspend the powers of M and Julian Korn to act as the attorneys under the LPAs; and
(c) to confer interim responsibility for E's care upon her children.
Events following the order of 9 July 2014
(a) the proceedings were formally served on M;(b) Laytons confirmed that the attorneys did not intend to contest the claim, though they refuted the substance of it;
(c) the attorneys agreed to disclaim their appointment under the LPAs;
(d) all parties agreed that there was now a need for the court to appoint an interim deputy for property and affairs, and the attorneys agreed to co-operate with the interim deputy;
(e) M agreed to renounce her appointment as an executor of E's will;
(f) M agreed to renounce her appointment as health care proxy under E's living will; and
(g) M handed S a set of keys to E's property.
(a) Philip Jenkins of Ten Old Square, counsel for the applicants;(b) Ruth Hughes of Five Stone Buildings, counsel for E, acting by the Official Solicitor; and
(c) Jordan Holland of Five Stone Buildings, counsel for M.
(a) appointing Keith Bruce-Smith of Harcus Sinclair Solicitors to be E's interim deputy for property and affairs; and(b) authorising Alison Meek of Harcus Sinclair to execute a codicil on E's behalf revoking M's appointment as her executrix.
The law relating to costs in Court of Protection proceedings
(a) Part 19 (rules 155 to 168) of the Court of Protection Rules 2007 (Statutory Instrument 2007 No. 1744 (L. 12)); and(b) two practice directions – 19A and 19B – which supplement Part 19 of the Court of Protection Rules, but are not relevant to this decision.
Property and affairs – the general rule156. Where the proceedings concern P's property and affairs the general rule is that the costs of the proceedings, or of that part of the proceedings that concerns P's property and affairs, shall be paid by P or charged to his estate.
Personal welfare – the general rule
157. Where the proceedings concern P's personal welfare the general rule is that there will be no order as to the costs of the proceedings or that part of the proceedings that concerns P's personal welfare.
Apportioning costs – the general rule
158. Where the proceedings concern both property and affairs and personal welfare the court, insofar as practicable, will apportion the costs as between the respective issues.
Departing from the general rule
159. – (1) The court may depart from rules 156 to 158 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances, including:
(a) the conduct of the parties;(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and(c) the role of any public body involved in the proceedings.(2) The conduct of the parties includes:
(a) conduct before, as well as during, the proceedings;(b) whether it was reasonable for a party to raise, pursue or contest a particular issue;(c) the manner in which a party has made or responded to an application or a particular issue; and(d) whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response.(3) Without prejudice to rules 156 to 158 and the foregoing provisions of this rule, the court may permit a party to recover their fixed costs in accordance with the relevant practice direction.
The applicants' skeleton argument
"Save for the costs of the 2nd Respondent, the Applicants' position is that the costs of the parties should be assessed and paid from the 1st Respondent's estate in the usual way, per rules 156 and 157. As to the 2nd Respondent's costs, the Applicants invite the court to make no order as to costs for the following reasons:-(1) The Applicants have put before the court a strong prima facie case of physical, emotional and financial abuse by the 2nd Respondent against their elderly and vulnerable parents. The 2nd Respondent has chosen not to engage with any of those allegations.
(2) The evidence of the history of the personal relations between the Applicants and the 2nd Respondent suggests it is fanciful to think that the 2nd Respondent would have agreed without more to relinquish all control and influence over E.
(3) Moreover, in view of the evidence before the court, the Applicants were reasonable to fear that if they articulated their concerns with the 2nd Respondent, asking her to give up all control and influence, there was a real (not fanciful) risk that this could put their mother at risk (including by returning with her to Florida). They were reasonably entitled to take the view that they should err on the side of caution in their mother's best interests.
(4) The 2nd Respondent had already indicated to the 1st and 2nd Applicants that she intended to take the 1st Respondent back to Florida in the autumn of 2014.
(5) The 2nd Respondent attended the meeting at Laytons Solicitors on 10th July and she indicated then that she had no intention of contesting matters. It was not until around 31st July that she decided to instruct solicitors, Charles Russell, to make a statement. However, the statement explains in few words that she is not contesting the application and then at rather greater length why the Applicants should pay her costs, presumably of the witness statement which is focused in large part on why she is entitled to her costs from the Applicant. The contents of that witness statement did not add substantively to the Laytons letter of 10 July 2014.
(6) It is not without significance that a substantial proportion of E's 60th anniversary jewellery purchased by D in February 2014 was in the 2nd Respondent's possession (where it is thought to have been since at least the middle of May) after service of the court orders on 10th July 2014 plus a very valuable diamond ring belonging to E. These items were delivered up by the 2nd Respondent to US lawyers acting for the 2nd Applicant on 21/22 July 2014.
(7) Overall, the idea that the 2nd Respondent seeks her costs of the application, as well as citing costs as a reason for not contesting matters, may appear rather odd in the context of the very considerable sums she has received. There is no real dispute that she has received at the very least $8-9 million of the family's money since 2008. The Applicants regard the 2nd Respondent's position in this matter as a deliberately personal attack on them for having finally faced up to matters in the best interests of their mother.
(8) The Applicants therefore respectfully request that the court order in the terms or substantially in the terms of the draft.
Mr Holland's submissions
(a) M does not accept the veracity of the applicants' evidence.(b) If she were to serve detailed evidence in response to all the allegations, it would be disproportionate and would drive up the costs.
(c) M was made a respondent to these proceedings and had no choice but to respond to the application.
(d) She was served with a wide-ranging injunction with a penal notice attached to it.
(e) Not only has M complied with the injunction but she has gone even further to co-operate with the applicants in order to facilitate the change in E's care regime.
(f) Laytons Solicitors, who were previously acting for her, advised her to seek independent legal advice, which she did. She instructed Charles Russell to advise and represent her.
(g) As regards E's jewellery, M explained how these items had come to be in her possession; provided a full list of them and, as we have seen, delivered them to the US lawyers acting for the 2nd Applicant.
(h) None of the allegations of abuse has been substantiated.
(i) There was no real need for this application, and there was certainly no imminent threat that E would be removed from the court's jurisdiction. M had simply suggested to N and S that their mother might like to go to Florida in the autumn.
(j) The Court of Protection Special Visitor noted in his report that: "[E] was prepared for M to act as her attorney. I mentioned to her that her children felt that M had been unkind to her, but she did not accept that there was any reason why she should not act as her proxy decision-maker."
(k) The attendance note made by Janet Ilett of the Official Solicitor's office, who visited E on 24 July 2014, states: "I asked about M and whether she was still a carer to which E replied that she was 'still around'. Would she be happy for M to visit her? She replied that 'It wouldn't hurt' and 'We had a nice time'."
Miss Hughes's submissions
(a) There are three sets of costs:(i) the applicants';(ii) the Official Solicitor's; and(iii) the second respondent's.(b) The Official Solicitor is already entitled to his costs by virtue of the order of 15 July 2014.
(c) Although this began primarily as a personal welfare application, with the applicants seeking an injunction to restrain E's removal from the jurisdiction, the property and affairs aspects became more prominent as the proceedings developed.
(d) In Re RC Deceased [2010] COPLR 1022, at paragraph 74, reference was made to Re Cathcart [1892] 1 Ch 549, 561, in which the Court of Appeal suggested that the court should have regard to the respective means of the parties when exercising its discretion as to costs. E has an estate worth £30,000,000.
(e) It would be disproportionate to attempt to apportion the costs.
(f) The Official Solicitor has no difficulty with agreeing that the applicants' costs should come from the estate.
(g) The Official Solicitor has some sympathy with Mr Holland's suggestion that an application of an urgent nature may have been unnecessary.
(h) This matter has largely been resolved by consensus.
(i) M has conceded a great deal of ground and relatively little has been incurred in the way of costs.
(j) Certainly, M's attitude has avoided the need for a full fact-finding exercise, which could have been long, painful, and very expensive.
(k) It would be reasonable to allow M's costs from the estate. There was a penal notice attached to the order and her response has been entirely appropriate.
Decision
(a) property and affairs matters, where the general rule (156) is that the costs are paid by P or charged to his estate; and(b) personal welfare matters, where the general rule (157) is that there will be no order as to costs.
Declaration relating to E's Living Will
(a) expressed her preferences for treatment at the end of her life; and(b) appointed her husband, D to, be her health care proxy, and M to replace him in the event that he predeceased her (which he did) .
"An advance decision is not valid if P … has, under a lasting power of attorney created after the advance decision was made, conferred authority on the donee (or if more than one, any of them) to give or refuse consent to the treatment to which the advance decision relates."
"A lasting power of attorney is not created unless –
(a) …
(b) an instrument conferring authority of the kind mentioned in subsection (1) is registered in accordance with Schedule 1. "
IT IS DECLARED as follows:The advance decisions made by E in the Living Will and set out in the Schedule to this declaration continue to exist and to be valid and to be applicable to her treatment.
THE SCHEDULE RECITALS
(1) I address this living will to my family, my doctor and anyone else who may be concerned with my health care.
(2) I have carefully considered the contents of this living will and they supersede any previous oral or written directions which I may have given about my health care.
(3) I intend this living will to take effect if:
(a) Two registered medical practitioners are of the opinion that I am no longer capable of participation in or communicating to others decisions about my health care or treatment; and(b) I am suffering from and will almost certainly spend the rest of my life in, one or more of the following conditions:(i) being in constant unremitting pain;(ii) being unconscious and unlikely ever to regain consciousness; or(iii) suffering from an incurable condition which will result in death within a short time.OPERATIVE PROVISIONS
1. I refuse all medical or surgical treatments or procedures which are aimed only at prolonging or sustaining my life.
2. I consent to receive such treatment as will relieve my pain and suffering and make me more comfortable and to being fed. I consent to such treatment even though it may shorten my life.
3. I would like my children to be consulted before any decision is made and implemented and to take part in any such decision.
4. All decisions are to apply to the treatments or procedures described in clauses 1 and 2 even if my life is at risk.
5. It is of the utmost importance to me that whatever the cost I be cared for at home for the remainder of my life and that I be allowed to die at home.