Cheshire West & Chester Council v P

On an appeal from the Court of Protection, costs are governed by the Civil Procedure Rules, not by the general costs rule applicable to personal welfare proceedings in the Court of Protection. The general rule is that the unsuccessful party pays, subject to consideration of the circumstances under CPR 44.3(4).

The court cannot extend the express family-proceedings exemption by analogy or import the Court of Protection’s no-costs rule. The vulnerability of the person concerned and the protective context may nevertheless be important circumstances. On the facts, the appropriate order was no order as to costs.

This was a costs judgment following the Court of Appeal’s substantive judgment in the appeal. The appeal arose from proceedings before Baker J in the Court of Protection, whose decision was reported as [2011] EWHC 1330 (Fam). Baker J had made adverse costs orders against the local authority at first instance, but had not ordered costs on the deprivation of liberty issue.

The local authority sought its costs of the appeal against P. P, represented by the Official Solicitor, opposed that application. The central issues were whether the Court of Protection’s general no-costs rule applied by analogy, and how the civil costs rules and public funding protection should be applied.

1. The local authority’s application for P to pay the costs of the appeal was refused. The order was no order as to costs, save for any assessment required for public funding purposes.
2. It was common ground that the Court of Protection Rules did not govern costs in this appeal. Because the appeal was from the Court of Protection rather than the Family Division, the relevant costs regime was CPR 44.3. Its general rule, under CPR 44.3(2)(a), was that the unsuccessful party should pay the costs.
3. Because P was publicly funded and protected by section 11 of the Access to Justice Act 1999, the court’s primary task under regulation 9(1) of the Community Legal Service (Costs) Regulations 2000 was to consider whether, absent cost protection, it would have made a costs order against him.
4. The court rejected the submission that Court of Protection personal welfare proceedings fell within the CPR 44.3(3) exemption by necessary implication. Such an approach would impermissibly rewrite the rule by incorporating Rule 157 of the Court of Protection Rules. The protective context and P’s vulnerability were relevant only as circumstances under CPR 44.3(4).
5. No general principle was laid down for future appeals. Each case had to be decided by reference to the criteria in CPR 44.3. The court considered P’s vulnerability, the fundamental importance of the Article 5 issue, the wider significance of the appeal, his lack of unreasonable conduct, his decision to resist the appeal, and the fact that he had been unsuccessful. The local authority’s misconduct in the proceedings below was irrelevant to the appeal because it had already been addressed by Baker J under Rule 159.
6. In the particular circumstances, the wider importance of clarifying how often local authorities must return to court, together with the protective and public-law context, made a costs order inappropriate.

• Court of Appeal (Civil Division) — Following the substantive judgment reported as [2011] EWCA Civ 1257, the court determined the costs of the appeal and ordered no order as to costs.
• Court of Protection — Baker J’s decision was reported as [2011] EWHC 1330 (Fam). The present court treated the first-instance costs orders as separate from the costs of the appeal.