Manchester City Council v G & Ors

In Court of Protection personal-welfare proceedings, the general rule is no order for costs, but the court may depart from it where the circumstances justify doing so. Relevant matters include the parties’ conduct, partial success and the role of any public body. Misconduct may include disregard of statutory procedures protecting liberty and family life, and failure to correct an unlawful position promptly. A costs order may extend beyond the discrete unlawful issue where that conduct materially increases the work required on related welfare issues. The appellate court will interfere with a trial judge’s costs decision only for an error of law or a conclusion no reasonable judge could reach. The appeal was dismissed.

Manchester City Council appealed from a costs judgment of Baker J in the Court of Protection, reported at [2010] EWHC 3385 (Fam). The underlying proceedings concerned E’s removal from the care of F and his subsequent residence. The court had found unlawful deprivation of liberty and infringements of E’s rights under Articles 5 and 8 of the European Convention. Baker J departed from the general costs rule, ordered indemnity costs up to the first hearing day, and ordered payment of one third of later costs on the standard basis. The central issue was whether that departure, the scope of the order and the costs bases were permissible.

Hooper LJ gave the judgment of the court. McFarlane J and Mummery LJ agreed. The appeal was dismissed.

1. The Court of Appeal could interfere with the costs decision only for an error of law or where no reasonable judge could have reached the conclusion. The trial judge had the advantage of the feel of the case after the hearing, which the appellate court could not replicate. The approach in Straker v Tudor Rose [2007] EWCA Civ 368 was applied.
2. Under Rule 157 of the Court of Protection Rules, personal-welfare proceedings ordinarily attract no order as to costs. Rule 159 permits departure where the circumstances justify it, having regard in particular to conduct, partial success and the role of a public body.
3. The local authority’s disregard of the procedures in the Mental Capacity Act 2005, together with infringement of E’s Convention rights, was capable of amounting to misconduct. The novelty or complexity of the legislation did not excuse the conduct. The authority should have ensured proper training and applied to the Court of Protection if uncertain whether its proposed arrangements amounted to a deprivation of liberty.
4. The costs order was not required to be confined to the discrete deprivation-of-liberty issue. The authority’s unlawful removal and delay in conceding the legal position materially increased the complexity and length of the related welfare enquiry. A broad-brush assessment was permissible, even though not all delay was attributable to the authority.
5. The fact that the authority ultimately succeeded in resisting an immediate return to F did not prevent a partial costs order. The substantive welfare decision was finely balanced, and much of the later work had been caused or enlarged by the authority’s conduct.
6. The order for indemnity costs up to the first hearing day was justified by the significant degree of unreasonableness in the authority’s conduct. The later order for one third of the costs on the standard basis was also within the judge’s discretion. The orders remained subject to detailed assessment if not agreed.

1. Court of Appeal (Civil Division) On 2 August 2011, the appeal against Baker J’s costs judgment was dismissed.
2. Court of Protection Baker J made the costs order under appeal in [2010] EWHC 3385 (Fam), following the substantive judgment reported at [2010] EWHC 621 (Fam). The local authority was ordered to pay indemnity costs up to and including the first hearing day and one third of later costs on the standard basis.