England and Wales Court of Protection Decisions

IN THE MATTER OF PP

		Sitting at First Avenue House High Holborn London WC1V 6NP
		March 16th 2017

JUDGMENT ON COSTS (REVOCATION OF LASTING POWER OF ATTORNEY)

1. I refer to my previous judgments of 15^th May 2015 in the application by BB for retrospective ratification of gifts out of the funds of PP (referred to as PP in that judgment) and of 31^st August 2016 in the application concerning the revocation of Lasting Powers of Attorney for Property and Financial Affairs and for Health and Welfare given by PP to the Applicants. I gave a judgement on costs in respect of the retrospective ratification of gifts application within my judgment of 31^st August 2016. What now remains is for me to give a judgment on costs in the application for revocation of the Lasting Powers of Attorney. The hearing, my judgment of 31^st August 2016 and this judgment are subject to the provisions of an order dated made on 29^th June 2016 under Practice Direction Transparency Pilot.
2. In my judgment of 31^st August 2016, I decided that the Lasting Power of Attorney for Property and Affairs should be revoked for the reasons set out in that judgment. I decided not to revoke the Lasting Power of Attorney for Health and Welfare.
3. In paragraphs 89 to 92 of my judgment of 31^st August 2016, I addressed the issue of costs of the application for revocation of the Lasting Powers of Attorney. I advised the parties that I was minded to make an order that BB and CD should be responsible for their own costs and further that the costs incurred by the Official Solicitor as litigation friend for PP in the application should be paid by BB and CD. I invited the parties to make written submissions on costs.

The law

4. By Rule 156 of the Court of Protection Rules 2007, where proceedings concern the property and affairs of a person the general rule is that the costs of the proceedings or of that part of the proceedings that concerns his property and affairs shall by paid by the person or charged to his estate.
5. By Rule 159(1) of the Court of Protection Rules 2007, the court may depart from Rule 156 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

c. The role of any public body involved in the proceedings

6. By Rule 159(2), the conduct of the parties includes

i. conduct before as well as during the proceedings

ii. whether it was reasonable for a party to raise, pursue or contest a particular issue

iii. the manner in which a party has made or responded to any application or a particular issue and

iv. 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; and

v. any failure by a party to comply with a rule, practice direction or court order

Submissions on costs

7. I have received submissions from the Applicants, from the Official Solicitor and from the Public Guardian as to costs.
8. The Applicants contend that, without the intervention of the Public Guardian in the proceedings, the question of whether to revoke the Lasting Powers of Attorney would have been adjudicated by me on the basis of written submissions, as I envisaged in paragraph 129 of my judgment of 15^th May 2015. They argue that unnecessary costs were incurred in responding to the Public Guardian's application and attending the hearing. The Public Guardian raised issues as to the accounts which were fully answered by the Applicants and not canvassed at the hearing. In those circumstances the Applicants should only pay the costs of making written submissions following the judgment of 15^th May 2015. Thereafter their costs should be met out of the estate of PP or paid by the Public Guardian.
9. The Public Guardian has made two submissions on costs, dated 26^th September 2016 and 28^th October 2016. He seeks no order for payment of his own costs. He accepts that the outcome of his first investigation was a requirement only that BB should seek ratification from the court of the gifts he had made out of PP's estate. However, when the Public Guardian learned of BB's action in using the gifted money for the purchase of property, he reconsidered his position and decided to make an application for revocation of the Lasting Powers of Attorney. The court made directions on 16^th November 2015 which envisaged the listing of an oral hearing if the matter was opposed. The further enquiries carried out by the Public Guardian were entirely within the remit of his functions and carried out to assist the court. Despite the stance of the Public Guardian and the Official Solicitor, the Applicants opposed revocation and filed detailed witness statements. Had they decided to consent to revocation, the hearing and filing of further evidence would have been unnecessary. Neither the Public Guardian nor PP should be responsible for the Applicants' costs. The conduct of AW and CD give ample grounds for a departure from the general rule in property and affairs cases. The Public Guardian seeks an order that the Applicants be responsible for their own costs and for the costs of PP.
10. The Official Solicitor as litigation friend for PP supports the submissions of the Public Guardian. He says in addition that it is untenable for the Applicants to argue that the matter would have been dealt with on paper but for the Public Guardian's application. Once the Applicants and the Official Solicitor filed their evidence, it was clear that there was a serious dispute over revocation of the Lasting Powers of Attorney which would always have required an oral hearing. That could only have been avoided if the Applicants had consented to be replaced as attorneys.

My decision

11. Liability for costs in the application for revocation of the Lasting Powers of Attorney is to be determined under Rules 156 and 159 of the Court of Protection Rules 2007. Thus the costs of the parties fall to be paid out of the estate of PP unless Rule 159 applies.
12. In deciding whether to depart from Rule 156, I must have regard to all the circumstances.
13. As to the conduct of the parties I must have regard to the conduct of the Applicants before as well as during the proceedings. I take into account the conduct of the Applicants before the application to the court was made by BB, as set out in my judgments of 15^th May 2015 and 31^st August 2016. After the application was issued, BB used PP's money to purchase property. CD was unaware of what he was doing. My criticisms of that conduct are set out in my judgment of 31^st August 2016. In consequence I determined that BB had contravened his authority and failed to act in PP's best interests, and that CD had failed to act in PPs best interests, in their roles as attorneys under the Lasting Power of Attorney for Property and Affairs. I consider that that that conduct justifies departure from the general rule on costs in property and affairs cases.
14. I must consider the reasonableness of pursuing or contesting an issue and the manner in which the claim was conducted. The Applicants submit that the matter could have been decided on the papers were it not for the application of the Public Guardian. However I accept the argument by the Public Guardian and the Official Solicitor that in view of the substantial opposition by the Applicants to revocation of the Lasting Powers of Attorney, there was no alternative but to hear the evidence of the parties, including the evidence of CD who had not given evidence at the previous hearing. In the light of my judgment on the ratification application, and the opposition of the Official Solicitor and the Public Guardian to the Applicants' position that they wished to continue to act as attorneys, the prospects of success of their application were always going to be in considerable doubt and the risk as to costs always present. My directions order of 28^th April 2016 gave the Applicants an opportunity to confer with the other parties and to consider whether they still wished to contest the application. They decided to do so.
15. In the revocation application there was no failure by the Applicants to comply with rules, practice directions or court orders.
16. I must also have regard to the issue of whether the Applicants have succeeded on part of their case even if they have not been wholly successful. The Applicants chose to maintain their position that they wished to continue to act as attorneys throughout the application and to the end of the hearing. They were successful only to the extent that I decided not to revoke the Lasting Power of Attorney for Health and Welfare. This was an issue on which I questioned BB and CD at the hearing and which was addressed relatively briefly in witness evidence. It was not contested by the other parties. In all other respects the Applicants were unsuccessful.
17. I must also consider the role of the Public Guardian as a public body involved in the proceedings. The Public Guardian does not seek payment of his own costs in the proceedings. He has performed his public function in providing information to the court from his own knowledge of PP's case. I do not criticise his conduct or consider that it should affect the decision that I should make on costs.
18. My decision is that, having regard to the matters set out above and in particular the conduct of the parties, BB and CD should be responsible in equal shares for their own costs of the application in relation to revocation of the Lasting Power of Attorney for Property and Affairs. PP's costs should be paid by BB and CD in equal shares. Re Cathcart is not relevant to this case. In my judgment, this is not an application made without any personal motive and made objectively in the best interests of PP.
19. As regards the issue of the Lasting Power of Attorney for Health and Welfare which gave rise to some preparation costs and instruction of counsel to deal with the matter in a hearing, the only costs at issue are those of the Applicants. SJ Lush decided in the case of Re RC that these are costs which fall under Rule 156 rather than Rule 157. The Applicants' costs in relation to that issue will therefore be paid out of PP's estate. Under Rule 158 I must apportion these costs so far as practicable. I direct, doing the best I can having regard to the balance of the documentary and oral evidence, that 10% of the Applicants' costs should be paid out of PP's estate. The balance should be paid as directed in paragraph 18 above
20. As to the arrangements for payment of PP's costs by BB, I would not oppose an agreement between BB and the Official Solicitor that the Official Solicitor's costs should be paid out of the estate of PP, such amount to be charged on the property owned by BB and JB.