HM (An Adult), Re

In proceedings concerning an incapacitated adult, the ordinary costs principles applicable in children’s proceedings and Court of Protection proceedings may be applied, with appropriate modification, in the High Court. A party whose serious misconduct causes litigation and related foreign proceedings may properly be ordered to pay the resulting costs on the indemnity basis. The court may also order reimbursement of foreign litigation costs and reasonable associated expenses where it has jurisdiction and the expenditure was caused by the party’s wrongful conduct. The court should disengage where continued involvement serves no useful purpose, while safeguarding the adult’s welfare and controlling further applications where necessary.

The judgment concerned final orders following earlier proceedings about HM, an incapacitated adult, whom her father, PM, had removed to Israel in breach of orders concerning her care. HM was subsequently returned to England. The court had already determined that it remained in HM’s best interests to reside and be cared for at Y.

The issues were whether PM should pay the costs of the Official Solicitor, the States of Guernsey and HM’s mother, including costs and expenses incurred in Israel; whether certain funds should be released to PM; and whether a third-party debt order and consequential allocation directions should be made.

1. Welfare and future proceedings. HM was thriving at Y and no further welfare order was presently required. The proceedings were therefore adjourned generally, with liberty to apply. PM was prohibited from bringing further proceedings relating to HM without permission from the High Court or the Court of Protection.
2. Costs principle. Although the proceedings were in the High Court, analogous principles to those applicable in children’s proceedings and under rules 157 and 159 of the Court of Protection Rules 2007 should apply, with appropriate modification, to proceedings concerning an incapacitated adult. Conduct before and during proceedings was material.
3. Indemnity costs. PM’s abduction of HM in defiance of the court’s orders was wrongful, unlawful and amounted to serious parental and litigation misconduct. It was the direct and immediate cause of the litigation in England and Israel and of its prolongation. The fair and appropriate order was therefore that PM pay the Official Solicitor’s costs incurred since 30 October 2009 on the indemnity basis. The Israeli lawyers’ advice was a reasonable and essential disbursement.
4. Foreign costs and expenses. Applying Richardson v Richardson [1989] Fam 95, the court had jurisdiction to order payment of costs and expenses connected with litigation in a foreign court. PM was ordered to reimburse the relevant sums paid or incurred by HM’s mother and the States of Guernsey, including necessary travel, accommodation and subsistence expenses.
5. Other applications. PM’s application for release of blocked funds was dismissed because he gave no details of the proposed litigation, no evidence of its importance or merits, and no evidence establishing the necessity of releasing the funds. A third-party debt order was appropriate, subject to an opportunity to object. Recovered sums were to be applied first to HM’s mother’s claim, with the balance divided between the Official Solicitor and the States of Guernsey in the agreed ratio of 80:20.