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Cost orders and the Court of Protection

11 September 2018, by Mai-Ling Savage

Mai-Ling Savage

(London Borough of Lambeth v MCS (by her litigation friend the Official Solicitor) (1) Lambeth CCG (2) [2018] EWCOP 14;  and London Borough of Lambeth v MCS (by her litigation friend the Official Solicitor) (1); and Lambeth CCG (2)[2018] EWCOP 20)

This case concerned P, a woman who had suffered a brain injury in 2014 as the result of a cardiac arrest. P is Colombian and a native Spanish speaker. As a result of the brain injury P, displayed the classic signs of a hypoxic brain injury. Mr Justice Newton found that it was likely that P was ready for discharge in 2014 and in any event it was clear that P was stable and ready for discharge in January 2017.

The original application, pursuant to s21A Mental Capacity Act 2005, was made by P’s RPR on 20 December 2016 out of frustration because despite the local authority and the Lambeth CCG supporting P’s wish to return to Colombia they had failed to progress it.

In a scathing judgment, Mr Justice Newton found that both the local authority and Lambeth CCG had failed to make the necessary arrangements for P’s repatriation and that this had been as a result of ‘disorganised, muddled and unfocused decision making, and what has at times verged on an arrogance’. Mr Justice Newton described the years of misery endured by P as a result of these failings and described P as ‘being kept a prisoner here, against her will’. In the strongest terms, Newton J described the conduct of the local authority and the CCG as unfocused, facile and predictably ineffective. The CCG was made a party to the proceedings as a result of its lack of engagement with the proceedings and the issues.

Newton J said at paragraph 25,

I set out a summary of these unhappy proceedings, not just because they should not have been necessary, but to highlight the very deeply frustrating and disorganised thinking, planning and management within the authority. As a result, a vulnerable adult has been kept unnecessarily miserable against her will, confined in an environment for much longer than was necessary. In my best estimate, for 3 years.

At the conclusion of the proceedings, Newton J invited the parties to make submissions on costs. The local authority and CCG resisted costs orders being made. Although it is not usual to make costs orders there are circumstances when they are appropriate. Newton J referred to the President’s judgment in Re G [2014] EW COP 5, and  Re SW [2017] EW COP 7 where a costs order was made because the application was “scarcely coherent … totally without merit … misconceived and vexatious”. This case was not in that category but the judge asked himself whether the Court can mark its disapproval by the consideration and award of costs in circumstances where the conduct of proceedings has been so poor and so incompetent. In light of the deeply critical comments of the judge, he found no difficulty in making a costs order against the local authority and the CCG.

Newton J concluded,

Without hesitation, I conclude that the circumstances of this case are so poor and so extreme (both in relation to the institution of proceedings and their subsequent conduct) that I should make an order that the costs of the proceedings should be born by the Applicant and Second Respondent. It is submitted to me (at paragraph 2) that the Court is asked to consider that whilst the Applicant was a party throughout, the CCG only being joined towards the end of the proceedings, it was the CCG who was the decision maker. I am not entirely clear what is being submitted here, Ms Rowlands represents both, and I am unable to make any apportionment. They are both public bodies, I simply make an order against both jointly and severally.

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