Staffordshire County Council v JP (by her litigation friend, the Official Solicitor) & Anor

In health and welfare proceedings, the usual rule is that costs are not awarded. The court nevertheless has a wide discretion to depart from that rule after considering all relevant circumstances. Litigation failures, including failure to comply with court directions and conduct causing wasted hearings, may justify an order. A finding of bad faith, flagrant misconduct or exceptional circumstances is not required. Difficult institutional resource conditions may explain failures, but they do not excuse them where they cause delay, distress or prejudice to P. The applicant public authority may be ordered to pay costs incurred by P in relation to wasted hearings, including reasonable costs of opposing the costs application.

The Official Solicitor, acting for JP, applied for costs against Staffordshire County Council in Court of Protection proceedings concerning protective injunctive relief against CH. The application followed two wasted hearings, on 8 June and 9 November 2022, caused principally by failures to file a clear case-management order and a Scott schedule.

The local authority admitted and apologised for the failures, attributing them to serious resource, recruitment, retention and illness-related pressures. It argued that JP had suffered no material disadvantage because the injunction remained necessary and protective. The central issue was whether the circumstances justified departing from the usual costs rule under Court of Protection Rules 2017, rule 19.5.

1. Costs discretion. Rule 19.5 of the Court of Protection Rules 2017 reflects the usual position that costs are not awarded in health and welfare matters. The court must consider all relevant circumstances. Conduct and failures to comply with directions or orders are relevant factors.
2. Threshold for departure. Applying AH and others v Hertfordshire Partnership NHS Foundation Trust and others [2011] EWHC 3524 (COP), a departure from the usual rule does not require bad faith, flagrant misconduct or exceptional circumstances.
3. Application to the failures. The local authority’s failures were institutional and were not attributed to individual employees. Resource pressures, recruitment difficulties and staff absence were recognised, but they did not excuse the failures. The authority, as applicant, bore primary responsibility for proper case management and progression.
4. The delays had materially affected JP. Proceedings had continued for more than 12 months with little progress; the injunction had not been properly executed or enforced; alleged breaches had caused continuing distress; and JP had been unable to have the litigation conducted fairly and expeditiously.
5. The local authority was ordered to pay JP’s costs of and occasioned by the hearings on 8 June and 9 November 2022, subject to summary assessment if not agreed. The order included the costs of the costs-related section of the position statement prepared for the opposed application.