Kirk v Devon County Council & Anor

In determining costs of two related appeals, the Court of Appeal treated the successful committal appeal differently from the welfare appeal. A contemnor who ought not to have been committed is not ordinarily deprived of costs merely because of previous litigation conduct or actual guilt of the alleged contempt, particularly where the appeal turns on premature process rather than merits. The appellant was therefore awarded standard costs, but not indemnity costs. No costs order was made for an appeal conceded because the underlying welfare order had become redundant through continuing obduracy and further proceedings would have been futile. Where attendances cover both appeals and precise apportionment is impracticable, the court may make a fair proportionate allocation.

The appellant had challenged orders made by the Court of Protection concerning MM. Newton J had made a committal order on 18 August 2016, and Baker J had earlier made a welfare order on 20 June 2016. The Court of Appeal allowed the committal appeal on procedural grounds and later allowed the welfare appeal by consent because the order had become redundant.

The liability for costs in both appeals had been reserved for determination on written submissions. The central issue was whether Devon County Council should pay the appellant’s costs, and, if so, on what basis.

1. Committal appeal. The appeal against the committal order had succeeded because it had been premature to proceed with the committal application. The issue was substantially one of process and did not depend on the underlying merits of the appellant’s position. Although conduct in the underlying litigation was relevant, a contemnor who ought not to have been committed was not to be deprived of the costs of a successful appeal merely because of that conduct or because she was in fact guilty of the alleged contempt. It was fair, just and reasonable for Devon County Council to pay the appellant’s costs. The costs were to be assessed on the standard basis; indemnity costs were not justified (para [9]).
2. Welfare appeal. The appeal against Baker J’s order had not been allowed or determined on its merits. It had been conceded because the order had become redundant as a means of securing MM’s return to the jurisdiction, and continuing with the existing approach was likely to be futile. That circumstance, rather than the appellant’s defiant conduct before the Court of Protection, was the decisive factor. There was therefore no order as to the costs of that appeal (para [11]).
3. Orders. Devon County Council was ordered to pay the appellant’s costs of the committal appeal from 20 October 2016, subject to detailed assessment if not agreed. The Court directed a legal aid assessment. Costs of attendances before the Court of Appeal on 8 November 2016 were apportioned two-thirds to the committal appeal and one-third to the welfare appeal, reflecting the impossibility of precise mathematical calculation (para [12]). The court also made the appropriate representation order, dated 27 October 2016, following the Legal Aid Agency’s indication that its earlier grant of legal aid had been made in error (para [13]).

1. Court of Appeal (Civil Division): the present judgment determined liability for costs of the two appeals.
2. Court of Appeal (Civil Division): on 26 January 2017, the appeal against Baker J’s welfare order was allowed by consent: [2017] EWCA Civ 34.
3. Court of Appeal (Civil Division): on 8 November 2016, the appeal against Newton J’s committal order was allowed on procedural grounds: [2016] EWCA Civ 1221.
4. Court of Protection: orders had been made by Baker J and Newton J concerning MM, reported under [2016] EWCOP 45.