The judgment is being distributed on the strict understanding that no report shall identify: (a) the person in respect of whom the proceedings have been brought, (b) the parties (save for the Second Respondent, Manchester City Council), (c) all witnesses (save for Christopher Read), (d) any other persons mentioned in the judgement (save for judges, counsel, their instructing solicitors, and Official Solicitor), and (e) any company, organisation or establishment or location mentioned in the judgment. If reported, it is the duty of the law reporters to ensure that this direction as to anonymity is followed.
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOOPER
MR JUSTICE McFARLANE
| MANCHESTER CITY COUNCIL
|- and -
E (by his litigation friend the Official Solicitor)
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr Guy Mansfield QC and Miss Kerry Bretherton (instructed by Switalskis) for the 1st Respondent (Miss Bretherton acting pro bono).
Mr Guy Mansfield QC (acting pro bono)(instructed by Switalskis) for the 3rd Respondent.
Ms Amy Street (instructed by Irwin Michell LLP) for the 2nd Respondent.
Hearing date: 25th July 2011
Crown Copyright ©
Lord Justice Hooper :
"In all the circumstances, I conclude that this is a case for departing from the general rule set out in rule 157 of the Court of Protection rules, and I make an order in the following terms:
(1) That the local authority [the appellant, Manchester City Council] 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 14th 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."
"He had some contact with his birth family, including occasional visits from his sister G, but, as I found in my first judgment, it is "beyond argument that E has been treated and has regarded himself as a member himself of F's family – in the words of her counsel, he is an integral part of family life".
"Her dedication to E during his time in hospital is widely acknowledged as having paid a considerable part in his successful recovery. His surgeon comments upon F's 'immense contribution to E's recovery and her very positive interaction with staff at the hospital'".
i) "that E lacks capacity to make a decision as to where he should live;
ii) that the local authority in the area where he lives wrongfully deprived him of his liberty and infringed his rights under Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by placing him on 7 April 2009 at a residential establishment known as the V Unit without seeking authorisation under the Deprivation of Liberty Safeguards and Schedule A1 of the Mental Capacity Act 2005 ["MCA"] or an order of the Court of Protection; and by subsequently placing him at another residential establishment known as Z Road without seeking an order of the Court and;
iii) that the same local authority had infringed his rights under Article 8 of ECHR, when they placed him at the V Unit, by removing him from the care of F, who had for many years cared for him as a foster carer and latterly an adult carer, without proper authorisation; by further failing to give any or any adequate consideration to his family life with F at the time of the removal or for many months thereafter; failing adequately to involve F in the decision making process about E's future, and restricting contact between E and F for several months after his removal."
"The judge has the feel of a case after a trial which the Court of Appeal cannot hope to replicate and the judge must have gone seriously wrong if this court is to interfere." (Straker v Tudor Rose  EWCA Civ 368,  C.P. Rep. 32, para 2)
"22. The rules governing the award of costs in the Court of Protection are set out in Part 19 of the Court of Protection Rules. The following rules are relevant to this application.
23. Rule 157, entitled "Personal welfare – the general rule", provides:
"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 of that part of the proceedings that concerns P's personal welfare."
24. Rule 159, headed "Departing from the general rule", provides as follows:
"(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…"
25. Rule 160 provides that, subject to the provisions of the Court of Protection Rules, some parts of the Civil Procedure Rules 1998 shall apply, with appropriate modifications, to costs incurred in relation to proceedings under the Court of Protection Rules. This includes Part 44 of the Civil Procedural Rules relating to costs. Of these latter rules, the following are relevant to the current applications.
26. Under CPR 44.3(1) "the court has discretion as to
(a) As to whether the costs are payable to one party to another;
(b) The amount of those costs;
(c) When they are to be paid."
27. Under CPR 44.3(6), "the orders which the court may make under this rule include an order that the party must pay
(a) a proportion of another party's costs;
(b) a stated amount in respect of another party's costs;
(c) costs from or until a certain date only;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating only to distinct part of the proceedings; and
(g) interest on costs from or until a certain date, including a date before judgment."
28. The distinction between indemnity and standard costs are set out in CPR 44.4 which provides inter alia as follows.
"(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs
(a) on the standard basis; or
(b) on the indemnity basis,
but the court will not in either case allow costs which have been unreasonably incurred or unreasonable in amount.
(2) Where the amount of costs is to be assessed on the standard basis, the court will
(a) only allow costs which are proportionate to the matters in issue; and
(b) resolve any doubt which it may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party.
(3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs have been reasonably incurred or reasonable in amount in favour of the receiving party."
Baker J's judgment
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 159, 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."
"... I do consider the local authority's conduct, certainly up to the moment when the issue of deprivation of liberty was conceded at the start of the hearing in January, amounted to "a significant degree of unreasonableness" so as to give rise to a liability for costs on an indemnity basis."
"Miss Irving boldly relies on the ignorance of the local authority's staff as an excuse and submits that the complexity of the statutory provisions left large numbers of professionals uncertain as to the meaning of "deprivation of liberty". Given the enormous responsibilities put upon local authorities under the MCA, it was surely incumbent on the management team to ensure that their staff were fully trained and properly informed about the new provisions. If a local authority is uncertain whether its proposed actions amount to a deprivation of liberty, it must apply to the Court."
"... the local authority's actions in this case would have infringed E's Article 5 and 8 rights under the old law as well as under the MCA."
"that some form of investigatory process, almost certainly involving court proceedings, would have been required in this case in any event."
"43. ... The proper course would have been the making of an urgent authorisation (by the V Unit) and/or standard authorisation (by the local authority) which could have been reviewed by the Court of Protection under section 21A of the MCA. When E moved to Z Road, a domiciliary care provider not covered by DOLS, the local authority should have applied to the Court of Protection for an order under section 16 or an interim order under section 48. In one or both of these ways, the issues of E's alleged ill-treatment by F, and his future residence and overall best interests, would have come before the court."
"But, in my judgment, the hearing would have been significantly shorter, and the issues less complex, than they were by the time of the hearing in January to March 2010. In particular, the best interests analysis would have been less complicated than it was by that date when E had been living away from F for over nine months. Furthermore, if the local authority had followed the proper procedure under the MCA, G's role in the proceedings would, in my judgment, have been much more peripheral. It is highly likely that she would not have had to initiate any proceedings herself, and possibly would not have even been a party at all. In the event, it was G who had to take the lead in establishing that the local authority's conduct amounted to a deprivation of E's liberty."
"44. Assessing the extent to which the delays in the commencement of proceedings extended the scope of the necessary enquiry is very difficult and a "broad brush" approach is unavoidable. In considering the scope of the enquiry which the court was required to carry out, I bear in mind that not all of the delays were attributable to the local authority.
45. ... In all the circumstances, I conclude that this is a case for departing from the general rule set out in rule 157 of the Court of Protection rules ..." .
Submissions and discussion
"174. The disadvantages of returning E to F at this stage include:
(1) the fact that he has been living away from F for nearly a year and has become relatively settled at Z Road;
(2) the likelihood that a further move will cause him considerable emotional difficulties even though it would consist of a return to a home with which he was familiar;
(3) the consequent likelihood that his emotional distress would lead to more challenging behaviour;
(4) the likelihood that F would struggle to cope with that behaviour as she did (in my judgment) in the months leading up to his removal from her care in April 2009;
(5) the need for F to be provided with training and guidance as to how to manage E's behaviour before he can safely be returned to her care;
(6) the risk that without that training and guidance E may be subjected to inappropriate physical restraint;
(7) the risk that the disruption caused by the move may set back the progress that has clearly made at school;
(8) the consequent risk that he will not be deemed suitable to move on to college to further his education and training in life skills;
(9) the fact that F is a sole carer who will have to bear almost all the responsibility for caring for E;
(10) the fact that F has demonstrated a lack of candour which if repeated may affect her relationships with the professionals who help care for E."
175. "In addition, there is one particular concern which I have had about returning E to F at this stage. It is clear to me that no final decision can be taken about his long-term placement until the comprehensive psychiatric report ordered by the court in December 2009 is available. There is a significant possibility that, when that report is available together with all the other material, the court will conclude that the better long-term placement for E is in a residential home, either at Z Road or in some other establishment. E's needs are complex and very substantial. It is likely that those needs will grow as he gets older. It seems to me that there is a very real possibility that the court will conclude in July that, notwithstanding the dedication and commitment that F has shown towards E in many years, she will not be able to cope with him in the long-term. In those circumstances, despite the clear benefits of returning to the family home that he has known most of his life, the court may well be driven to the conclusion that the better course would be for him to live elsewhere. It therefore seems to me that, if E now returns to F, there is a real risk that he will have to move again after the hearing in July. In my judgment, the emotional harm which E would suffer as a result of moving to F now and then moving elsewhere after July would be very considerable."
Mr Justice McFarlane
Lord Justice Mummery