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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> BP v The London Borough of Harrow (Costs) [2019] EWCOP 20 (14 June 2019) URL: https://www.bailii.org/ew/cases/EWCOP/2019/20.html Cite as: [2019] EWCOP 20 |
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MENTAL CAPACITY ACT 2005
IN THE MATTER OF BP
First Avenue House 42-49 High Holborn, London, WC1V 6NP |
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B e f o r e :
____________________
BP (by his litigation friend, the Official Solicitor) |
Applicant |
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- and - |
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The London Borough of Harrow |
Respondent |
____________________
Sarah Helier of HB Public Law for the Respondent
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Crown Copyright ©
Introduction
The protected person
The issues for determination
Preliminary issues
The law
(1) The court may depart from rules 19.2 to 19.4 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 that party's case, even if not 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 matter;
(c) the manner in which a party has made or responded to an application or a particular issue;
(d) whether a party who has succeeded in that party's application or response to an application, in whole or in part, exaggerated any matter contained in the application or response; and
(e) any failure by a party to comply with a rule, practice direction or court order.
(3) Without prejudice to rules 19.2 to 19.4 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.
55 Costs
(1) Subject to Court of Protection Rules, the costs of and incidental to all proceedings in the court are in its discretion.
(2) The rules may in particular make provision for regulating matters relating to the costs of those proceedings, including prescribing scales of costs to be paid to legal or other representatives.
(3) The court has full power to determine by whom and to what extent the costs are to be paid.
(4) The court may, in any proceedings—
(a) disallow, or
(b) order the legal or other representatives concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with the rules.
(4) "Legal or other representative", in relation to a party to proceedings, means any person exercising a right of audience or right to conduct litigation on his behalf.
(5) "Wasted costs" means any costs incurred by a party—
(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or
(b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.
Applicant:
Manchester City Council v. G, E and F [2010] EWHC 3385 In particular Baker J at paragraph 40 (which the Applicant says was approved by Hooper LJ in the Court of Appeal at [2011] EWCA Civ 939 at [17].):
"40. Of course, it is right that the Court should follow the general rule where appropriate. Parties should be free to bring personal welfare issues to the Court of Protection without fear of a costs sanction. Local authorities and others who carry out their work professionally have no reason to fear that a costs order will be made. The submission that local authorities will be discouraged from making applications to the Court of Protection if a costs order is made in this case is a thoroughly bad argument. The opposite is, in fact, the truth. It is only local authorities who break the law, or who are guilty of misconduct that falls within the meaning of [Rule 19.5], that have reason to fear a costs order. Local authorities who do their job properly and abide by the law have nothing to fear. In particular, the Court of Protection recognises that professional work in this very difficult field often involves very difficult judgments and decisions. The Court is not going to impose a costs burden on a local authority simply because hindsight demonstrates that it got those judgments wrong.
41. In this case, however, I am entirely satisfied that the local authority's blatant disregard of the processes of the MCA and their obligation to respect E's rights under the ECHR amount to misconduct which justifies departing from the general rule."
Re M [2015] EWCOP 45:
The court retains a residual power, which it exercises occasionally, where one or other party has been found …conduct that can be described as "significantly unreasonable".
LB Harrow v AT [2017] EWCOP 37 (at paragraph 28).
The Applicant submits that these authorities distil to a test of whether the conduct of the local authority was 'significantly unreasonable' and that a broad or holistic approach is to be taken to the issue of conduct related costs orders.
Respondent:
London Borough of Lambeth v MCS & Anor [2018] EWCOP 2018 (the Respondent submits that costs were awarded against London Borough of Lambeth and the Lambeth Clinical Commissioning Group on the basis a) that the proceedings should never have been brought and b) their conduct of the proceedings once commenced)
SHC NHS Dorset Clinical Commissioning Group v LB & Anor [2018] EWCO 7, (the Respondent submits that an Application for costs by the OS after a test case relating to DoLS was withdrawn. The application was refused).
Garylee Grimsley – 23 December 1998 Master O'Hare referred to R -v- Legal Aid Board Ex Parte Bruce (1991), (the Respondent says it was noted that the latter case did not allow for 2 or more attendances).
The decision
Issues not considered
Issues considered
18 June 2018 hearing
After the 18 June 2018 hearing
"8 There are 3 best options before the court:
1 Remain at [the Care Home] with no plan for return home as LA proposes;
2 Return home on a long term basis as BP wishes with LA package of care and NHS mental health support; or
3 A trial period at home with LA care package and NHS support and the BG placement being retained as a fallback in the event of care at home breaking down (retainer being reviewed on a weekly basis).
9 The LA favours option1. BP's wishes would be met by options 2 or 3. The OS advances 2 and 3 on the basis of BP's wishes and feelings and the prospect that he otherwise faces potentially lifelong deprivation of liberty in a care home, albeit subject to the statutory annual review."
'the Trial period was discussed in detail. The LA confirmed that if the Court decided that BP should return home the bed [at the Care Home… ] would be kept open for the first week initially.'
That does not evidence the Respondent's agreement to BP having a trial at home.
The January hearing
I find that was an active proposal for a trial at home.
(a) Before the proceedings, failing to comply with the BIA's recommendation that there should be a trial period at home;
(b) During the proceedings, maintaining the position that there should not be a trial period at home when such a trial had been recommended by Harrow's assessor;
(c) Continuing to contest the need for a trial period at home when it was raised on BP's behalf in November 2017, June 2018, August 2018 and up to the point at which the final hearing had already commenced on 24 January 2019.
' 21. The number of occasions when this issue [a trial of BP returning home] was raised demonstrates the many opportunities Harrow had to review its position on this issue, which it declined to do until at court for a final hearing. The 23 August 2018 statement of agreed issues shows that at that stage Harrow had reviewed and declined to accept the need for a trial at home.
22. In terms of "success" the Official Solicitor on behalf of BP was able to achieve a trial period at home. The fact that the trial did not result in a permanent return home is not the measure of success, because the trial itself enabled a return home to be ruled out as a viable option.
23. The Official Solicitor seeks an order that Harrow should pay the costs of and occasioned by the final hearing on 25 and 25 January 2019 which were wasted by reason of the last-minute volte face. The amount of costs claimed is £10,525.87 exclusive of vat.'