Case No: B4/2016/2837
Case No: B4/2016/4035
Neutral Citation Number: [2017] EWCA Civ 260
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION 
Mr Justice NEWTON
Mr Justice BAKER
[2016] EWCOP 45
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12 April 2017
Before :

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION 

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Re MM (A Patient)

Between :

	TERESA KIRK	Appellant	
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	(1)	DEVON COUNTY COUNCIL
(2)	MM (by his litigation friend the Official Solicitor)

Respondent	

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Applications dealt with on paper 

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Judgment
Sir James Munby President of the Family Division : 
1.	This matter has twice been before the Court of Appeal. On the first occasion, on 8 November 2016 (Sir James Munby P, Black and McFarlane LJJ), we allowed Mrs Kirk’s appeal against the committal order made by Newton J on 18 August 2016 and gave her permission to appeal against the welfare order previously made by Baker J on 20 June 2016: Devon County Council v Kirk [2016] EWCA Civ 1221. On the second occasion, on 26 January 2017 (Sir James Munby P), I approved a consent order allowing her appeal against Baker J’s order: Re MM, Kirk v Devon County Council [2017] EWCA Civ 34. I dealt with the matter on paper and without an oral hearing. I have now to deal with the costs of the appeals.
2.	By an order dated 8 November 2016 we directed that Mrs Kirk’s application for an order for costs against Devon County Council “is reserved and shall be resolved by the court on receipt of written submissions to be filed in accordance with” a specified timetable. By a further order dated 5 December 2016 we directed that Mrs Kirk’s application for “the costs of the committal appeal is adjourned for oral hearing on the occasion of the hearing of the welfare appeal.” In the event there was no oral hearing. In relation to costs, the order I made by consent on 26 January 2017 provided as follows:
“2.	The issue of the costs of the appeal as between [Mrs Kirk] and [Devon County Council] against the order of Baker J dated 20 June 2016 shall be determined as to any liability for such costs on the basis of written submissions which should be filed and served as follows … 
3.		Any liability for costs assessed by the court under paragraph 2 above shall be the subject of either agreement, or in the absence of agreement, detailed assessment as to quantum.
4.		The application for costs made by [Mrs Kirk] against [Devon County Council] which relates to the appeal against the committal order made on 18 August 2016 which appeal was determined by the Court of Appeal at the hearing on 8 November 2016 shall be determined on the basis of the written submissions which [they] have already filed and any finding as to liability shall be the subject of agreement, or in the absence of an agreement, a detailed assessment as to quantum.
5.		Subject to the applications to be determined under the arrangements set out in this order there shall be no orders as to costs in relation to the appeal against the order dated 20 June 2016 and there shall be a detailed assessment of the costs of [MM].”
3.	It follows that it now falls to me to determine liability for the costs of both the committal appeal and the welfare appeal.
4.	Mrs Kirk seeks orders in relation to both appeals against Devon County Council, essentially on the ground that she was, as she would have it, wholly successful in both appeals and that Devon County Council, the effective respondent and the party which had been responsible for obtaining both the welfare order made by Baker J and the committal order made by Newton J, should bear the normal consequences of defeat, not least given its active opposition to both appeals when the matter was before us on 8 November 2016. (She does not seek any order against either MM or the Official Solicitor.) 
5.	In relation to these applications, I have received written submissions from Mr Colin Challenger on behalf of Mrs Kirk dated 14 November 2016, 30 November 2016, 21 December 2016, 11 January 2017 and 31 January 2017, from Ms Louise MacLynn on behalf of Devon County Council dated 23 November 2016 and from Mr Andrew Bagchi QC also on behalf of Devon County Council dated 14 February 2017.
6.	In relation to the costs of the appeal against the committal order, Mr Challenger submits that the fact that the appeal against the committal order was allowed on one ground, without the court feeling it necessary to address the others, is no reason Mrs Kirk should not recover all her costs. Moreover, he says, these costs should be ordered on an indemnity basis.  
7.	Ms MacLynn submits that there should be no order. She draws attention to the undoubted fact that, initially, Mr Challenger was acting pro bono, so that costs would not be recoverable (other than by way of an order under section 194 of the Legal Services Act 2007). Mr Challenger’s riposte, not effectively rebutted, is that he acted pro bono only from 16 until 20 October 2016, and that his solicitors never acted pro bono, Mrs Kirk having had explained to her that she was responsible for their costs and signed the appropriate client care letter. 
8.	Ms MacLynn challenges Mrs Kirk’s right to recover costs on the basis: (a) that Mrs Kirk’s conduct throughout the proceedings had been “reprehensible” and “egregious” (see, for example, what Baker J said in his judgment), thereby causing Devon County Council to incur substantial costs – a burden that ultimately falls on the taxpayer; (b) that Devon County Council had been acting throughout in performance of its safeguarding duty to vulnerable adults; (c) that Mrs Kirk succeeded in the Court of Appeal on a ground not argued before Newton J and only appearing as ground 12 in her grounds of appeal; (d) that Devon County Council’s stance was supported by the Official Solicitor, both before Newton J and before the Court of Appeal; and (e) that if the transcript of Baker J’s judgment been provided more promptly, and if the Court of Appeal had therefore been able to proceed to deal with the appeal against Baker J’s order more expeditiously, it may be that Mrs Kirk’s committal would have been avoided. Ms MacLynn summarises Devon County Council’s stance as being that it resisted the appeals because “on principle it felt it had to defend the Court of Protection’s attempt to implement and enforce its own best interests decision.” In any event, there is, she says, no reason why costs should be ordered on an indemnity basis.
9.	I bear in mind all the points made by Ms MacLynn, not least the irrefutable fact that Mrs Kirk’s behaviour throughout has been defiant of the Court of Protection and its orders. Devon County Council no doubt found itself in a very difficult position, conscientiously doing its best both to uphold the Court of Protection’s orders while seeking to perform its important safeguarding duties. But the fact is that, for the reasons we explained, Newton J should not have proceeded with the committal application – it was, as we said, simply premature to press on with it at that stage: Devon County Council v Kirk [2016] EWCA Civ 1221, paras 28-30. This had little if anything to do with the underlying merits (or otherwise) of Mrs Kirk’s stance; it was largely to do with process. In my judgment, although the contemnor’s conduct in the underlying litigation is plainly relevant, a contemnor who ought not to have been committed is not to be deprived of the costs of a successful appeal which she could otherwise expect to be awarded merely because of her previous litigation conduct or even because she was in fact guilty of the alleged contempt. The principle that ‘she brought it on herself’ and that ‘she has only herself to blame’ has some traction but can only be taken so far. In my judgment, and notwithstanding everything pressed on me by Devon County Council, it is nonetheless fair, just and reasonable to order it to pay Mrs Kirk’s costs of her successful appeal against the committal order. The fact that we fastened on only one of a much larger number of grounds for allowing the appeal is not, in my judgment, any reason for refusing to order costs or for limiting the amount of the costs to be awarded. Nor is the fact that Mrs Kirk has been publicly funded since 27 October 2016 (see below) any reason for coming to a different conclusion. I do not, however, accept that this could possibly be a case for the award of indemnity costs. 
10.	In relation to the costs of the appeal against Baker J’s order, Mr Bagchi places emphasis on the fact that the appeal was not allowed or determined on its merits but because it was agreed that Baker J’s order had become redundant as a method of securing MM’s return to the jurisdiction. The narrow grounds on which the appeal was conceded were, essentially, as I put it, because of “the fact of Ms Kirk’s continuing obduracy” and because “pressing on as hitherto is likely to be an exercise in futility”: see Re MM, Kirk v Devon County Council [2017] EWCA Civ 34, paras 9, 11-12, 15. As Mr Bagchi puts it, the utility of the original order had been simply outflanked by Mrs Kirk’s conduct. Echoing submissions earlier made by Ms MacLynn, Mr Bagchi submits that the magnetic factor in relation to costs remains Mrs Kirk’s defiant and egregious conduct in removing MM from the jurisdiction when independent expert evidence was filed that did not support her case and her determined and wilful resistance to compliance with the orders of the Court of Protection to facilitate or assist in MM’s return.  It is, he submits, simply unconscionable for Devon County Council to have to make any contribution to her costs given the fact that all the costs in the litigation from the time of MM’s removal derive from that unlawful act and her defiance of the orders of the court. It is, he says, unfair and contrary to public policy for a local authority to be “punished” by way of costs for seeking properly to discharge its duties to a vulnerable adult.
11.	I have set out Mr Bagchi’s submissions because although I can go some of the way with him I cannot go the full distance. The magnetic factor in relation to the costs of the appeal against Baker J’s order is, in my judgment, not so much Mrs Kirk’s defiant and egregious conduct before the Court of Protection (highly relevant as that would be in relation to the costs in the Court of Protection) but rather that, as Mr Bagchi correctly puts it, the appeal was not allowed or determined on its merits but because it was agreed that Baker J’s order had become redundant, given the fact of Ms Kirk’s continuing obduracy. That is the reality, and that, in my judgment, points decisively to the conclusion to which I have come, that there should be no order in relation to the costs of the appeal against Baker J’s order.
12.	I shall accordingly order: (1) that Devon County Council shall pay Mrs Kirk’s costs of her appeal from the committal order as from 20 October 2016, those costs, if not agreed, to be assessed on the standard basis; and (2) that there shall be no order as to the costs of Mrs Kirk’s appeal against Baker J’s order. I shall also, as requested, direct a legal aid assessment of Mrs Kirk’s costs. The effect of these orders is to require an apportionment as between the two appeals of the costs of the attendances before us on 8 November 2016. This apportionment does not, in the nature of things, admit of any precise mathematical calculation. In my judgment, the proper order is that that these costs be apportioned as to two-thirds to the costs of the committal appeal and as to the remaining one-third to the costs of the application for permission to appeal against the welfare order.   
13.	In my first judgment in this matter I referred to the availability of public funding for contemnors: Devon County Council v Kirk [2016] EWCA Civ 1221, para 52. We were not asked to make an order for public funding, no doubt because, on 27 October 2016, the Legal Aid Agency had granted legal aid in relation to the committal appeal. On 10 March 2017 the Legal Aid Agency sent an email to Mrs Kirk’s solicitors:
“Please accept my sincere apologies however in light of the information provided, where the Court has the power to grant a Representation Order that we do not have, we cannot grant legal aid for proceedings in these venues. As a result, the legal aid granted in these circumstances has been granted in error however please contact the Court with a copy of our correspondence requesting that in light of the determination made by us, the Representation Order is upheld and the work billable to the Court themselves.”
If by this the Legal Aid Agency is inviting the Court of Appeal to make the appropriate representation order itself, I will do so. The order will be dated as of 27 October 2016.