England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION
(Sitting in public)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/06/2016

Charles J :

Opening remarks

1. My judgment in this case is reported at [2016] EWCOP 21.
2. As the Applicant indicated might be the case she makes an application that part of her costs be paid by the Respondents on an indemnity basis. The application has been made and resisted on written submissions.
3. I refuse it and direct that, as provided for by Rule 157 of the Court of Protection Rules, there will be no order as to costs. In my view, departure from that rule is not justified in this case.
4. In the best traditions of their professions the Applicant's legal representatives represented her pro bono following the withdrawal of public funding by the Legal Aid Agency on the evening of 8 December 2015. However, no order for costs is sought for the period from 5pm on 8 December 2015 because of a reciprocal agreement reached with the Respondents not to seek costs of the hearing on 9 December 2015.
5. Prior to the withdrawal of public funding work had been carried out on a pro bono basis by Richard Spearman QC and Victoria Butler-Cole in respect of this application, which related to the imposition of reporting restrictions.
6. I am very grateful to the Applicant's legal representatives for their help as no doubt are the Applicant and her family.
7. I consider that my judgment on the substance of this application warrants a reconsideration of the decision of the Legal Aid Agency. Also, that judgment should be taken into account in future cases relating to the public funding of a family member of the subject of proceedings in the Court of Protection (P).
8. The order sought is that the Respondents do pay:

i) the costs of the Applicant's solicitor and Vikram Sachdeva QC up to 5pm on 8 December 2015 on the indemnity basis at inter partes, to be assessed if not agreed; and

ii) an amount as summarily assessed on the indemnity basis to the Access to Justice Foundation, representing the pro bono costs of Richard Spearman QC and Victoria Butler-Cole of counsel up to 5pm on 8 December 2015, and the pro bono equivalent costs of Victoria Butler-Cole in respect of the costs submissions.

The first part of this relief relates to costs that were publicly funded. The second part is founded on s. 194 of the Legal Services Act 2007 and there is a dispute as to whether it applies to the Court of Protection (the COP) which is not mentioned expressly in the relevant statutory definition of a civil court. I do not need to address that dispute because on the assumption that the section applies to the COP I refuse to make the order sought.

9. The orders sought relate to a limited period of time in the history of this case. As appears from my judgment the application related to the extension or making of a reporting restrictions order after the death of the subject of the proceedings (C) on Saturday 28 November 2015 when the reporting restrictions order that had been made during the substantive proceedings came to an end.
10. MacDonald J's judgment in the substantive proceedings was handed down (without attendance) on 30 November 2015. A significant increase in the media interest in reporting the case resulted and this formed part of the background to the hearing of the application before me on 9 December 2015. The attempt to make an application on 2 December 2015 during court hours and the out of hours application made later that day to Theis J also formed part of that background. Theis J made a reporting restrictions order over 9 December 2015 and I continued it on that day.
11. Accordingly, the period of time in respect of which costs orders are sought covers a period from 30 November to 2 December when no reporting restrictions order was in place and a period from 2 December to 8 December when one was again in place.
12. In addition to her success in the application the Applicant relies on:

i) the matters set out in paragraphs 20 to 24 and 53 to 54 of my judgment concerning conduct of the media, all or most of which took place after 2 December 2015 and so when a reporting restrictions order was again in place,

ii) my conclusions set out in paragraphs 29 to 32 of my judgment which relate to (a) the Applicant's evidence, all or most of which was served on 8 December 2015 (and so after the out of hours hearing), and (b) the arguments advanced by the Respondents at the out of hours hearing and again before me at the hearing on 9 December 2015 but which were later abandoned (see paragraphs 109 to 129) of my judgment, and

iii) the Respondents' objection to the application and the denial of her and her family's Article 8 rights at the out of hours hearing and at the hearing on 9 December 2015.

13. As appears from paragraph 46 of my judgment I do not accept that the primary reason for the Respondents' change of position was the late service of the Applicant's evidence. Rather, it seems to me that, as reflected in the stance taken that the restrictions should end when the youngest child reached the age of 18 (which I rejected and commented on at paragraphs 136 to 143 of my judgment which have a link to paragraphs 27 to 35 thereof), the opposition of the Respondents at the out of hours hearing and the hearing on 9 December 2015 was based on an understandable approach from their perspective in the circumstances that then existed, namely that an injunction that would restrict what, and the way in which, the media wanted to report should be resisted on any properly arguable grounds.
14. As appears from my judgment I consider that the comments I make in respect of some of the reporting in paragraphs 29 to 32 thereof would be appreciated by anyone with any compassion without sight of the Applicant's evidence. But, of itself, an approach that lacks compassion or is callous (see paragraphs 29 and 143 of the judgment) does not mean that it is wrong or contrary to the balance of competing Convention rights (see paragraph 35 of the judgment).
15. Also, there is a significant difference between the helter skelter of an out of hours application and one when there has been more time for thought and in my view the legal arguments advanced by, and later abandoned by, the Respondents were ones that they could properly advance. The other side of this street at the out of hours application is reflected in my rejection of the criticisms of the Applicant's counsel at paragraph 184 of my judgment.
16. In my view, the points made in the last two paragraphs mean that the fact that the Respondents advanced the arguments they did at the out of hours hearing (and on 9 December 2015) is not a valid reason for ordering them to pay costs.
17. In any event, and in my view importantly, if the Applicant wanted reporting restrictions to continue after the death of C the reality was that she had to make, and support by evidence and argument, an application to the court for a reporting restrictions order. In theory she could have obtained undertakings from the Respondents to the same effect if the undertakings were to the court. But that would not have covered all of the media coverage and approach that was troubling and distressing her and was not a practical option in the circumstances that existed.
18. This means that the objection of these Respondents to the application at the out of hours hearing and up until the reciprocal agreement on costs was reached on 8 December 2015 added little, if anything, to the costs incurred by the Applicant.
19. At paragraph 18 of his judgment in In the matter of G (an adult) [2014] EWCOP 5 Munby P said:

----------------- Let it be assumed for the sake of argument – I make no findings on the point – that ANL's reporting of the proceedings merited every word of Cobb J's criticisms. What has that got to do with the question of costs with which I am alone concerned? With all respect to those who may think otherwise, nothing at all. Orders for costs are not to be made as a back-door method of punishing inaccurate or even tendentious reporting. The very suggestion is deeply unprincipled. ----------------.

20. In the circumstances of this case, I consider that basing a costs order against the Respondents on their conduct and reporting that I criticised would be a back door, an unprincipled and an arbitrary approach to expressing disapproval of, or punishing, that conduct because it would be based on the point that they participated and argued against the application whilst others, whose conduct was also criticised, did not. However, I leave open whether in other circumstances equivalent conduct could properly be taken into account to found either an order for costs or the basis of their assessment.