England and Wales Court of Protection Decisions

COURT OF PROTECTION

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/05/2014

THE HONOURABLE MR JUSTICE KEEHAN

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Mr Justice Keehan :

Introduction

1. This matter concerns a young woman, LW, who is 24 years of age. She is diagnosed with a condition known as hebephrenic schizophrenia. It has had and has a severe adverse impact on her day to day life. Her compliance with taking her prescribed medication to alleviate the affects of her condition is variable.
2. When this case first came before this court on 11 April 2014 LW was in the late stages of pregnancy. Baker J gave directions on North Somerset Council's application for permission under the inherent jurisdiction of the High Court not to disclose the care plan for the unborn child to the mother, namely removal into care at birth.
3. An issue arose as to whether an application should be made in the Court of Protection to permit the hospital, at which she was due to give birth to perform a caesarean section if it were established she lacked capacity to consent to medical treatment.
4. Accordingly Baker J directed that the University Hospitals Bristol NHS foundation Trust should attend the hearing listed before me on 15 and 16 April.
5. On 15 April 2014 I dealt with the local authority's application for an order under the inherent jurisdiction and for a reporting restriction order. The balance of the hearing on 15 April and then on 16 and 23 April was concerned with the Court of Protection application.
6. For reasons I shall deal with shortly, at the hearing on 23 April it was eventually agreed by the local authority, the Official Solicitor, as litigation friend for LW, and the three hospital trusts that LW did not lack capacity to consent to medical treatment, including an elective caesarean section. I, therefore, made no order on the Court of Protection application.
7. On 1 May the mother gave birth by an elective caesarean section ('CS').
8. At the conclusion of the hearing on 23 April an issue about costs arose. I directed the parties to file written submissions. The Official Solicitor and the local authority both seek an order for costs against one or more of the hospital trusts.
9. This judgment should be read with the judgment I gave in the matter NSC v LW and EW (By her Children's Guardian) [2014] EWHC 1670 and in particular paragraphs 13 to 20 where I set out the background. I do not propose to set out the background further in this judgment, save where there are additional matters which are relevant to the issue of costs.

Law

10. The jurisdiction in respect of costs in the Court Protection is set out in ss 55 and 56 of the Mental Capacity Act 2005, Part 19 of the Court of Protection Rules 2007 and Part 44 of the Civil Procedure Rules 1998.

Mental Capacity Act 2005 ss 55 and 56

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.

(5)"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.

(6)"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.

56 Fees and costs: supplementary

(1) Court of Protection Rules may make provision—

(a) as to the way in which, and funds from which, fees and costs are to be paid;

(b) for charging fees and costs upon the estate of the person to whom the proceedings relate;

(c) for the payment of fees and costs within a specified time of the death of the person to whom the proceedings relate or the conclusion of the proceedings.

(2) A charge on the estate of a person created by virtue of subsection (1)(b) does not cause any interest of the person in any property to fail or determine or to be prevented from recommencing.

Court of Protection Rules 2007 Part 19 rr 156-160

Property and affairs – the general rule

156. 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 of 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.

Rules about costs in the Civil Procedure Rules to apply

160.—(1) Subject to the provisions of these Rules, Parts 44, 47 and 48 of the Civil Procedure Rules 1998 ("the 1998 Rules") shall apply with the modifications in this rule and such other modifications as may be appropriate, to costs incurred in relation to proceedings under these Rules as they apply to costs incurred in relation to proceedings in the High Court.

(2) The provisions of Part 47 of the 1998 Rules shall apply with the modifications in this rule and such other modifications as may be appropriate, to a detailed assessment of the remuneration of a deputy under these Rules as they apply to a detailed assessment of costs in proceedings to which the 1998 Rules apply.

(3) Where the definitions in Part 43 (referred to in Parts 44, 47 and 48) of the 1998 Rules are different from the definitions in rule 155 of these Rules, the latter shall prevail.

(4) Rules 44.1, 44.3(1) to (5), 44.6, 44.7, 44.9, 44.10, 44.11. 44.12 and 44.12A of the 1998 Rules do not apply.

(5) In rule 44.17 of the 1998 Rules, the references to Parts 45 and 46 do not apply.

(6) In rule 47.3(1)(c) of the 1998 Rules, the words "unless the costs are being assessed under rule 48.5 (costs where money is payable to a child or a patient)" are removed.

(7) In rule 47.3(2) of the 1998 Rules, the words "or a district judge" are removed.

(8) Rule 47.4(3) and (4) of the 1998 Rules do not apply.

(9) Rules 47.9(4), 47.10 and 47.11 of the 1998 Rules do not apply where the costs are to be paid by P or charged to his estate.

(10) Rules 48.2, 48.3, 48.6A, and 48.10 of the 1998 Rules do not apply.

(11) Rule 48.1(1) of the 1998 Rules is removed and is replaced by the following: "This paragraph applies where a person applies for an order for specific disclosure before the commencement of proceedings".

Civil Procedure Rules 1998 Part 44

Court's discretion as to costs

44.2

(1) The court has discretion as to –

(a) whether costs are payable by one party to another;

(b) the amount of those costs; and

(c) when they are to be paid.

(2) If the court decides to make an order about costs –

(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b) the court may make a different order.

(3) The general rule does not apply to the following proceedings –

(a) proceedings in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division; or

(b) proceedings in the Court of Appeal from a judgment, direction, decision or order given or made in probate proceedings or family proceedings.

(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –

(a) the conduct of all the parties;

(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

(c) any admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.

(5) The conduct of the parties includes –

(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;

(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and

(d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.

(6) The orders which the court may make under this rule include an order that a 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 a distinct part of the proceedings; and

(g) interest on costs from or until a certain date, including a date before judgment.

(7) Before the court considers making an order under paragraph (6)(f), it will consider whether it is practicable to make an order under paragraph (6)(a) or (c) instead.

(8) Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.

Basis of assessment

44.3

(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. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favor of the paying party.

(Factors which the court may take into account are set out in rule 44.4.)

(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 were reasonably incurred or were reasonable in amount in favor of the receiving party.

(4) Where –

(a) the court makes an order about costs without indicating the basis on which the costs are to be assessed; or

(b) the court makes an order for costs to be assessed on a basis other than the standard basis or the indemnity basis,

the costs will be assessed on the standard basis.

(5) Costs incurred are proportionate if they bear a reasonable relationship to –

(a) the sums in issue in the proceedings;

(b) the value of any non-monetary relief in issue in the proceedings;

(c) the complexity of the litigation;

(d) any additional work generated by the conduct of the paying party; and

(e) any wider factors involved in the proceedings, such as reputation or public importance.

(6) Where the amount of a solicitor's remuneration in respect of non-contentious business is regulated by any general orders made under the Solicitors Act 19744, the amount of the costs to be allowed in respect of any such business which falls to be assessed by the court will be decided in accordance with those general orders rather than this rule and rule 44.4.

Procedure for assessing costs

44.6

(1) Where the court orders a party to pay costs to another party (other than fixed costs) it may either –

(a) make a summary assessment of the costs; or

(b) order detailed assessment of the costs by a costs officer,

unless any rule, practice direction or other enactment provides otherwise.

(Practice Direction 44 – General rules about costs sets out the factors which will affect the court's decision under paragraph (1).)

(2) A party may recover the fixed costs specified in Part 45 in accordance with that Part.

Time for complying with an order for costs

44.7

(1) A party must comply with an order for the payment of costs within 14 days of –

(a) the date of the judgment or order if it states the amount of those costs;

(b) if the amount of those costs (or part of them) is decided later in accordance with Part 47, the date of the certificate which states the amount; or

(c) in either case, such other date as the court may specify.

(Part 47 sets out the procedure for detailed assessment of costs.)

Legal representative's duty to notify the party

44.8  Where –

(a) the court makes a costs order against a legally represented party; and

(b) the party is not present when the order is made,

the party's legal representative must notify that party in writing of the costs order no later than 7 days after the legal representative receives notice of the order.

(Paragraph 10.1 of Practice Direction 44 defines 'party' for the purposes of this rule.)

Cases where costs orders deemed to have been made

44.9

(1) Subject to paragraph (2), where a right to costs arises under –

(a) rule 3.7 (defendant's right to costs where claim is struck out for non-payment of fees);

(a1) rule 3.7B (sanctions for dishonoring cheque);

(b) rule 36.10(1) or (2) (claimant's entitlement to costs where a Part 36 offer is accepted); or

(c) rule 38.6 (defendant's right to costs where claimant discontinues),

a costs order will be deemed to have been made on the standard basis.

(2) Paragraph 1(b) does not apply where a Part 36 offer is accepted before the commencement of proceedings.

(3) Where such an order is deemed to be made in favor of a party with pro bono representation, that party may apply for an order under section 194(3) of the 2007 Act.

(4) Interest payable under section 17 of the Judgments Act 18385 or section 74 of the County Courts Act 19846 on the costs deemed to have been ordered under paragraph (1) will begin to run from the date on which the event which gave rise to the entitlement to costs occurred.

11. The provision in r157 COPR, that the general rule in cases relating to P's welfare is that there will be no order as to costs, was referred to by Hedley J as "the conventional approach"; NHS Trust and B Trust v DU, BO, EB and AU [2009] EWHC 3504. There is provision to depart from the general rule in the circumstances set out in rule 159.
12. The position in relation to the costs of the Official Solicitor are set out in r163 Court of Protection Rules 2007:

Costs of the Official Solicitor

163. Any costs incurred by the Official Solicitor in relation to proceedings under these Rules or in carrying out any directions given by the court and not provided for by remuneration under rule 167 shall be paid by such persons or out of such funds as the court may direct.

13. The previous practice that one half of the Official Solicitor's costs would be paid by the other parties, usually the applicant, has survived the enactment of the Mental Capacity Act 2007 and the introduction of the Court of Protection Rules 2007: NHS Trust v D [2012] EWHC 886 (COP).
14. I have been referred to the cases of Manchester City Council v G and othrs [2011] EWCA Civ 939, G v E and othrs [2010] EWHC 3385 (Fam), Hillingdon v Neary and Othrs [2011] EWHC 3522 and AH and othrs [2011] EWHC 3524. I have taken account of and applied the principles and/or guidance set out in each of those cases.

The Hearings

15. The Second Respondent trust, UHBT, was notified of the order of Baker J on 14 April. The legal department sent a letter by email to the local authority later the same day. In the email UHBT asserted:

i) LW was to undergo a capacity assessment on 17 April;

ii) it was for the trust to make an application to the Court of Protection

iii) it did not intend to appear or be represented at the hearing listed for 15 and 16 April; and

iv) it requested the hearing be vacated.

16. At no stage did UHBT apply to the court to vary or discharge the order made by Baker J on 11 April directing it to attend the hearing on 15 and 16 April.
17. A considerable period of time was taken up during the morning of 15 April making contact with the legal department of UHBT and seeking its co-operation with the issue of LW's capacity to consent to medical treatment. It was only when the trust's legal department was told that I planned to telephone the Chief Executive of the trust, in open court, to ask for an explanation for the failure to comply with the order of 11 April, that co-operation was received. Counsel was instructed and I am very grateful to Ms Hallisey for appearing before me at short notice.
18. In the absence of any appropriate evidence or witnesses available to give evidence, I adjourned the matter to the following day and made a direction that UHBT should undertake an urgent assessment of LW's capacity to consent to medical treatment namely an elective cervical inversion ('ECV') and/or CS which should be available to the court on 16 April. No such assessment was undertaken. I have not been given any explanation, either during the hearing on 16 April or in written submissions why UHBT did not comply with that direction.
19. On 16 April I heard evidence from Mrs Matthews, a consultant obstetrician and gynaecologist, and from BC, LW's midwife. They had both last seen LW in clinic on 9 April. Mrs Matthew's evidence on the capacity of LW to consent to a CS was unclear. At one point she asserted that she was of the view that LW did not have the capacity to consent to a CS. A little later she said that she did not know if she had capacity to so consent. Nevertheless she invited the court to grant permission to the trusts to 'undertake these medical interventions'.
20. BC told me that there had been a strategy meeting on 7 April. The professionals at that meeting concluded:

i) if the foetus did not turn out of the breech potion and labour commenced before planned surgery, the foetus could be starved of oxygen and die;

ii) LW might not recognise she is in labour, may go into labour on her own and may not let anyone know;

iii) LW was resistant to professional advice and had a history of violence to professionals;

iv) it was possible LW was not being compliant with medication; and

v) an application to the Court of Protection was necessary to seek authority to give medical treatment to LW to which she may not have capacity to consent.

21. The following day BC contacted UHBT's legal department and discussed the matter with Caroline Saunders. BC had told me that given LW's due date was 30 April, she could go into labour at any time before then.
22. In her statement of 22 April Ms Saunders maintains the view that she was not given any sense of urgency for an application to be made to the Court of Protection during the course of conversation with BC on 8 April. Later that day she was informed that the clinicians had agreed to undertake a capacity assessment of LW when she attended a planned clinic appointment on 17 April.
23. I observe that Dr G, the mother's treating consultant psychiatrist, was only invited to attend that capacity assessment on 16 April.
24. Mr Hallin, counsel for the Official Solicitor, asserts in his written submissions that:

" The evidence strongly suggested that both LW and her baby were in potentially mortal danger if she were to go into labour alone and yet it was not evident to the Official Solicitor whether any plan had been made for when her labour started".

I agree.

25. Dr G briefly gave evidence on 16 April. She had not undertaken an assessment of LW's capacity to consent to medical treatment but was to attend the assessment meeting for the following day.
26. At the conclusion of the oral evidence no party submitted I had sufficient or cogent evidence upon which I could determine whether LW had the capacity to consent to medical treatment. Accordingly, I had no option but to adjourn the matter off to 23 April to allow the assessment of capacity to be undertaken on 17 April.
27. Extensive directions were given for (i) disclosure of LW's medical records; (ii) the issues to be considered at the planning meeting, which was to be held before the capacity assessment, and at the assessment; and (iii) for UHBT to file a care plan.
28. The Third and Fourth Respondent Trusts were joined as parties. The former principally to give effect to the orders made for disclosure of medical records. The latter were joined because it was the trust which provided psychiatric care and support to the mother.
29. UHBT agreed to issue an immediate application to the Court of Protection to seek orders permitting the trust to undertake a CS.
30. To the surprise of many professionals involved in LW's care, on 17 April she was found to have capacity to consent to an ECV, which she declined, and to undergoing a CS, to which she gave her consent. She requested she be given pain relief by epidural anaesthesia.
31. Accordingly at the hearing on 23 April I was ultimately invited by consent to make no order on the trust's application. I so ordered.

Submissions

32. The three respondent trusts resist the applications made by the local authority and the Official Solicitor. In respect of the latter, the trusts submit they should not be ordered to pay any of the Official Solicitor's costs, notwithstanding the usual approach in these cases to payment of the Official Solicitor's costs.
33. In essence the trusts submit that if they had been left to their own devices and had undertaken the capacity assessment on 17 April no application would have been necessary to the Court of Protection and no legal costs would have been incurred.
34. I do not agree.
35. I accept and prefer the submissions of the local authority and of the Official Solicitor.
36. I do not accept the trusts' criticism of the approach of the Official Solicitor to the conduct of these proceedings and the role properly taken by his counsel to test the medical evidence.
37. The Official Solicitor submits that the trusts' case that these proceedings were an unnecessary distraction is plainly wrong. He asserts that these proceedings and the involvement of the court were pivotal in ensuring that an appropriate care plan was put in place for the birth of LW's baby and for the treatment of LW. I agree.
38. I do not consider any substantive criticism can be made of the Third or Fourth Respondents. The Third Respondents were joined, as I have said, solely for the purposes of the disclosure of medical records. The Fourth Respondent was responsible for the provision of psychiatric services to LW. While it played an important role in multi-disciplinary meetings concerning LW's pregnancy and labour and to provide support and treatment to LW before and after her labour, it was not responsible for taking the lead in formulating plans for LW's labour.
39. UHBT was responsible for taking the lead in:

a) planning for LW's labour;

b) producing contingency plans if LW became unco-operative or violent;

c) assessing LW's capacity to consent to medical treatment related to her pregnancy; and

d) to make any necessary applications to the Court of Protection.

40. I am in no doubt that, on the evidence before me, UHBT fell well short in meeting their duties to LW and her unborn child. I so find for the following principal reasons:

i) no comprehensive plan or contingency plan had been devised until after the court had been seized of the matter;

ii) there was an unacceptable delay in arranging and/or undertaking a capacity assessment of LW to consent to medical treatment;

iii) on the evidence of BC the unborn child was at serious risk of death or very serious harm;

iv) in light of that evidence, and see paragraph 20 above, I do not understand, notwithstanding the account given by Caroline Saunders in her statement of 22 April, why:

a) an urgent capacity assessment was not undertaken on 9,10, or 11 April; and

b) if it found LW lacked capacity to consent to medical treatment, an urgent application was not thereafter issued in the Court of Protection;

v) until the court was seized of this matter, no psychiatrist, and in particular no psychiatrist familiar with LW, had been invited to attend the capacity assessment;

vi) the response of the trust to the order of Baker J of 11 April was wholly inappropriate and unacceptable. I accept the submissions of the local authority and of the Official Solicitor that, in terms, the tenor of the letter of 14 April sent by the trust to the local authority is indicative of the lackadaisical approach of the trust to this complex and serious matter; and

vii) there appears to have been little or no planning or communication between component parts of the trust responsible for LW's medical care and/or between the clinical staff and its legal department and certainly none which reflected the complexity, seriousness and urgency in this matter.

41. The cumulative effect of these factors is that part of the hearing on 15 April and the whole of the hearing on 16 April, were completely ineffective. Accordingly I am satisfied that in the premises the court is justified in departing from the general rule that there be no order as to costs: rr 157 & 159.
42. The Official Solicitor was not LW's litigation friend for the purposes of the local authority's applications under the inherent jurisdiction or for a RRO. He was her litigation friend solely for the purposes of the Court of Protection applications.
43. Accordingly I propose to order that UHBT pay the whole of the Official Solicitor's costs of 15 and 16 April. In contrast the hearing of 23 April was an effective hearing albeit I ultimately made no order on the full evidence then before the court. Thus the usual rule will apply in respect of the hearing on 23 April, namely UHBT will pay one half of the Official Solicitor's costs for that hearing.
44. Those costs are to be assessed, if not agreed, on a standard basis.
45. In respect of the costs of the local authority, on the basis that it applied for and was granted orders under the inherent jurisdiction and a RRO on the morning of 15 April. I shall direct that UHBT pay one half of the local authority's costs of the hearing on 15 April and the whole of its costs for the hearing on 16 April. For the reason given in paragraph 43 above, I make no order for costs for the hearing on 23 April.
46. Those costs are to be assessed, if not agreed, on a standard basis.
47. There will be no order for costs for the preparation of written submissions on the issue of costs.