G v E & Ors

In personal-welfare proceedings in the Court of Protection, the general rule is that there is no order as to costs. The court may depart from that rule where the parties’ conduct and the role of a public body justify doing so. A local authority is not protected from costs liability merely because it acted in a difficult field, used public funds, faced financial pressures, or made an error while implementing new legislation. A failure to recognise and lawfully authorise a deprivation of liberty, coupled with continuing resistance to the correct legal analysis, may amount to significant unreasonableness and misconduct warranting indemnity costs. The court should nevertheless assess causation and proportionality broadly, recognising that some proceedings may have been necessary even if lawful procedures had been followed.

G applied for costs arising from Court of Protection proceedings concerning her brother E, a young adult with severe learning disability. E had been removed from the care of F and placed first at the V Unit and later at Z Road. The local authority failed to obtain the authorisations or orders required under the Mental Capacity Act 2005 and the deprivation of liberty safeguards. In earlier proceedings, the court found breaches of E’s rights under Articles 5 and 8 of the Convention and later ordered E’s return to F’s care.

The present application concerned the costs of the proceedings up to and including that return. G and F sought all their costs on the indemnity basis. The Official Solicitor sought 50 per cent of E’s costs on the standard basis. The central issue was whether the local authority’s conduct justified departing from the general costs rule and, if so, to what extent and on what basis.

1. Departure from the general rule. Rule 157 of the Court of Protection Rules establishes a general rule of no order as to costs in proceedings concerning personal welfare. Rule 159 permits departure having regard to all the circumstances, including conduct, partial success and the role of a public body. The rules must be applied impartially. A public authority is not immune from costs liability because the financial consequences fall on the public purse or might affect its social-care budget.
2. Misconduct and indemnity costs. The local authority’s failure to recognise that E’s placements involved a deprivation of liberty, its failure to use the statutory safeguards or apply to the Court of Protection, and its continued denial of the legal position amounted to blatant disregard of the statutory processes and Convention rights. The management team should have ensured that staff were trained and properly informed. The conduct amounted to a significant degree of unreasonableness within the meaning of the indemnity-costs principles.
3. Causation and scope. The court accepted that a proper authorisation or application would probably still have required an investigation, expert evidence and a best-interests determination. The unlawful delay nevertheless made the eventual hearing longer and the best-interests analysis more complex. It also made G’s role substantially more onerous and led her to initiate proceedings. A broad-brush assessment was therefore required.
4. Order. The local authority was ordered to pay G’s, F’s and E’s pre-litigation costs and costs up to and including 14 January 2010 on the indemnity basis. It was ordered to pay one third of those costs from that date to 6 May 2010 on the standard basis. All costs were subject to detailed assessment if not agreed. Permission to appeal on the later statutory-charge point was refused.