G (An Adult), Re

Applications to join proceedings in the Court of Protection are governed by the Court of Protection Rules 2007, even where the application is misconceived and fails. The Civil Procedure Rules 1998 do not apply merely because joinder is refused.

In personal welfare proceedings, the general rule is no order as to costs, but the court may depart from it under rules 157 and 159. It may consider conduct before and during proceedings, partial success, public-body involvement, the public importance of an issue and whether multiple parties have advanced substantially identical arguments. Appellate intervention in a costs discretion requires an error of principle or a decision outside the generous ambit of reasonable disagreement.

G, a protected adult represented by the Official Solicitor, was involved in Court of Protection proceedings concerning her capacity, welfare and contact with the media. Associated Newspapers Limited applied to be joined as a party. The President dismissed that application as misconceived and made a costs order requiring the newspaper to pay 30% of G’s and the local authority’s costs. The decision was reported as Re G (Adult), London Borough of Redbridge v G and others [2014] EWCOP 1361 and the costs decision as In the matter of G (Adult) [2014] EWCOP 5.

G appealed, arguing that the Civil Procedure Rules 1998, rather than the Court of Protection Rules, governed the unsuccessful joinder application and that the costs order involved an error of principle.

1. Applicable procedural rules. The appeal was dismissed. An application seeking joinder under rule 75 of the Court of Protection Rules 2007 is an application within the Court of Protection proceedings. Its being misconceived and refused does not take it outside those Rules. The Court of Protection Rules contain their own overriding objective, so the default power in rule 9 to apply the Civil Procedure Rules 1998 was not engaged.
2. Costs jurisdiction. Section 55(1) and (3) of the Mental Capacity Act 2005 gave the Court of Protection power to determine by whom and to what extent costs should be paid. Rules 157 and 159 of the Court of Protection Rules 2007 therefore governed the application. Although the general rule in personal welfare proceedings is no order as to costs, the court may depart from it after considering all the circumstances, including the conduct of the parties, partial success and the role of any public body.
3. Exercise of discretion. The President was entitled to consider conduct before and during the application, the public importance of the media issue, the fact that the Official Solicitor’s letters had triggered the application, ANL’s achievement of clarification on an important point despite losing the joinder issue, and whether ANL should bear two substantially overlapping sets of costs. The proportionate 30% order was within the broad discretion conferred by rule 159.
4. Appellate restraint. As explained in Burchell and Ballard [2005] EWCA Civ 358, an appellate court should interfere with a costs order only where the judge exceeded the generous ambit of reasonable disagreement or erred in principle. No such error was established. The court expressed its strong view that G should not suffer financially from the appeal, and the Official Solicitor confirmed that G would not bear its costs.

• Court of Appeal (Civil Division): Appeal against the costs order dismissed.
• Court of Protection: The President dismissed ANL’s joinder application and subsequently ordered ANL to pay 30% of G’s and the local authority’s costs, reported at [2014] EWCOP 5.