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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> G v E & Ors [2010] EWHC 3385 (Fam) (21 December 2010) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2010/3385.html Cite as: [2011] 1 FLR 1566, [2010] EWHC 3385 (Fam), [2011] Fam Law 473, (2011) 14 CCL Rep 140

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IN THE COURT OF PROTECTION

		Royal Courts of Justice Strand, London, WC2A 2LL Applicant First Respondent Second Respondent Third Respondent
		21st December 2010

MR. JUSTICE BAKER :

INTRODUCTION

1. This is an application for costs in the long running proceedings in the Court of Protection brought by G concerning her brother E, a young man now aged twenty who suffers from a severe learning disability.
2. The proceedings have already given rise to three reported judgments. In the first, delivered on 26 March 2010 and reported at [2010] EWHC 621 (Fam), I inter alia granted declarations:

(1) that E lacks capacity to make a decision as to where he should live;

(2) that the local authority in the area where he lives wrongfully deprived him of his liberty and infringed his rights under Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by placing him on 7 April 2009 at a residential establishment known as the V Unit without seeking authorisation under the Deprivation of Liberty Safeguards and Schedule A1 of the Mental Capacity Act 2005 ["MCA"] or an order of the Court of Protection; and by subsequently placing him at another residential establishment known as Z Road without seeking an order of the Court and;

(3) that the same local authority had infringed his rights under Article 8 of ECHR, when they placed him at the V Unit, by removing him from the care of F, who had for many years cared for him as a foster carer and latterly an adult carer, without proper authorisation; by further failing to give any or any adequate consideration to his family life with F at the time of the removal or for many months thereafter; failing adequately to involve F in the decision making process about E's future, and restricting contact between E and F for several months after his removal.

Although for the reasons explained in that first judgment I concluded, having carried out a detailed best interests analysis, that E should continue at that stage to continue to reside at Z Road, I subsequently at a further hearing on 6 May 2010, following receipt of an expert psychiatric report, decided that he could return to live with F. He duly returned there and I have now been told has settled back home successfully.

3. In a further judgment, delivered on 30 July 2010 and reported at [2010] EWHC 2042 (Fam), I concluded that it was appropriate to identify the local authority involved in this case as Manchester City Council.
4. In the most recent judgment, delivered on 11 October 2010 and reported as [2010] EWHC 2512 (COP), I refused an application by G and F for the appointment of deputies for E's personal welfare and property and affairs, and further refused an application by G to replace the Official Solicitor as E's litigation friend in a claim against Manchester City Council for damages arising out of the circumstances of his removal from F's care. That latter claim will be considered by me next year.
5. The issue I now have to consider is the costs of the first stage in these proceedings, up to and including the hearing on 6 May when E was returned to F's care.

BACKGROUND

6. The history of the case is fully set out in the first judgment. I recite only the salient features for the purposes of this application.
7. E suffers from a condition known as tuberous sclerosis with associated physical problems and serious learning difficulties which cause significant social and communication problems. He comes from a troubled family and has lived in foster care from the age of five. He was first placed with F in respite care and finally accommodated with her on a full time basis under section 20 of the Children Act 1989 in 1999. Thereafter throughout his childhood he was looked after by F. He had some contact with his birth family, including occasional visits from his sister G, but, as I found in my first judgment, it is "beyond argument that E has been treated and has regarded himself as a member himself of F's family – in the words of her counsel, he is an integral part of family life".
8. F is a forthright and articulate person and there have been occasional difficulties between her and some of the professionals involved with E, in particular with some of the staff at his school. F was concerned about how the school managed his often difficult behaviour. Other professionals have a more positive view of F. In 2007, a report prepared jointly by a psychiatrist and a psychologist concluded:

"It seemed that F provided E with a lot of social scaffolding which obviously helped him feel very secure and relaxed. Without that scaffolding, however, it seems he finds social interaction very difficult and becomes very anxious very quickly."

In May 2008, E was admitted to hospital for surgery to be carried out to his spine. In the event he remained there for four months but F was able to stay with him every day. Her dedication to E during his time in hospital is widely acknowledged as having paid a considerable part in his successful recovery. His surgeon comments upon F's "immense contribution to E's recovery and her very positive interaction with staff at the hospital".

9. While E was in hospital, F reached a firm conclusion that she wished to continue to care for him when he became an adult. As part of her application to that end, she completed a CRB check. In doing so, she failed to give full details of four previous convictions for offences of dishonesty, although the details of those offences were already known to the Children's Services Department at the local authority. I found, however, that she should have given full details of those offences on her application form. In due course, it was recommended that F be approved as a long term carer for E. On 14 November 2008, an adult placement agreement was signed where F granted E a licence to occupy a room at her home, and on 24 December of that year a formal carer agreement between the local authority and F was signed.
10. Meanwhile, E had returned to school following his discharge from hospital where he continued to display behavioural problems. In addition, F was now also experiencing some occasional challenging behaviour by E. On 28 March 2009, she took E on holiday, accompanied by her sister, Q and her sister's partner R. Whilst there, an incident occurred during which E struck F. After returning from the holiday, F saw T, E's social worker, who subsequently noted in her records an account which she said F had given about this incident. This was the subject of a considerable amount of evidence at the hearing before me in January to March 2010. I found that T's account was accurate. In it, she said:

"F related that E kicked off on holiday. He asked to go to bed. F was eating, delayed responding and put the plates down, E smacked her right in the face. He also grabbed at her and ripped her pyjama top. Q and R got hold of him, one from behind and one holding his arms. F demonstrated that E was on the floor with his arms reached upwards and that he was held by his upper arms. F went upstairs. E went to follow her. F described E as being given a love – hugged so that he could not leave the room. F related that Q and R cared for E the next day and gave him his tea"

11. Meanwhile, while F and E were abroad the local authority received a "safeguarding adults" referral from E's school. It was reported that E had said "sleeping in the wardrobe" and "don't lock the door". There was concern that E's alleged statements could reflect the way he was being treated at home. On 7 April, the local authority concluded that E should be placed in respite care while this safeguarding referral was being investigated. He was therefore removed from F's care and placed in a residential establishment called the V Unit. No authorisation was sought for his detention at this unit under the Deprivation of Liberty Safeguards under the MCA which had come into force a few days earlier.
12. E found it very difficult to settle in at the V Unit and there were incidences in which members of staff sustained injury. He was also heard to say "don't lock me in the cupboard" and "don't hurt me". Meanwhile, several meetings were held amongst professionals to consider E's case. None of them were convened to conduct an analysis of his best interests, and, save for one meeting, F was not invited. On 11 June, F was visited by T and another social worker and told that E would not be returning home. Meanwhile, E's behaviour at the V Unit continued to cause concern and he was referred to X Limited, an independent provider of domiciliary care services which runs a number of residential establishments, including one at Z Road, a unit housing three men of special needs with a staff support ratio of 2:1. On 15 June E moved to Z Road and continued to reside there for the next eleven months. Once again, no consideration was given at that stage of whether any approval was required under the MCA for this further move.
13. By this stage, F had consulted solicitors who wrote to the local authority asserting that it was operating unlawfully by depriving E of his liberty and without authorisation under the Deprivation of Liberty Safeguards. The local authority replied denying any breach of E's human rights and asserting that the Safeguards had been followed and that a best interests meeting would be convened within the next few weeks. On 24 August, G, who had not seen E for some time, got in touch with the local authority. She had not been informed about E's move and had not been involved in any decision-making about his future. On 9 September, a letter before action on behalf of G was sent to the local authority warning of her intention to start proceedings under the MCA and the Human Rights Act.
14. Meanwhile, the safeguarding adults investigation instigated following the allegations that F had ill-treated E was finally completed on 15 October. The outcome was "inconclusive". The local authority repeated its assertion that a best interests decision would shortly be made. A core assessment was carried out which concluded that E needed to be supported by a services provider such as X Limited. On 21 October, the local authority wrote to the solicitors acting for G and F informing them that, although a best interests meeting had not yet taken place, the authority would be recommending that E remained in his current placement.
15. On 13 November, G filed her application in the Court of Protection. On 25 November, the much-promised best interests meeting concerning E was finally held. The meeting reached the conclusion that it was in E's best interests to remain in his current setting. On 8 December, G's application was listed for a preliminary hearing before Ryder J. On that occasion the Court did not have time to hear detailed legal argument and was unable to make findings as to the issues of deprivation of liberty and best interests raised by G and F. Ryder J did, however, order that, pending determination of the interim issue of residence, which was listed for hearing in the following January, it was in E's best interests to continue to reside at Z Road. The learned judge gave further directions including the instruction of an independent psychiatrist and an independent social worker to provide expert evidence as to E's capacity and best interests.
16. On 9 December, G finally visited E at Z Road. That visit was a success and was followed by a contact visit with F, who had not seen E since he was removed from her care in April. Thereafter, regular contact resumed between E and G and between E and F.
17. On 10 January, the independent social worker, Mr Chris Read filed his report in which he, inter alia, expressed the view that E was indeed being unlawfully deprived of his liberty by the arrangements made by the local authority by placing him at the V Unit and Z Road.
18. On 14 January, the hearing started before me in the Manchester Civil Justice Centre. At the outset of that hearing, the local authority conceded for the first time that it had deprived E of his liberty by placing him at the V Unit and subsequently at Z Road, failed to comply with the statutory obligations under the Deprivation of Liberty Safeguards and infringed E's rights under Articles 5 and 8. It was immediately apparent that the two days allocated by the earlier court order for the hearing before me were wholly inadequate. In the event, the hearing lasted nine days. Evidence covered, inter alia, the allegations against F and the allegation made by F concerning the school. At the conclusion of the evidence I accepted the social worker's account, as set out above, about what she had been told concerning the incident on holiday, and I found that F had not told me the truth about that incident. This attempt to mislead the court had, furthermore, to be assessed in the context of further misleading evidence given by F concerning her criminal record. Having carefully considered these matters, however, I concluded that they should not necessarily lead to the conclusion that F was unfit to care for E. On the contrary, there was further significant evidence to support the proposition that he should return to her care.
19. In the course of the hearing, I also considered and ruled on a number of complex legal issues raised by counsel. I then conducted a best interests analysis, following the guidance given by the Court of Appeal in Re A (Medical Treatment: Male Sterilisation) [2000] 1 FLR 549, and concluded that E should not at that stage return to F's care. That was a finely-balanced decision influenced to a considerable extent by the fact that the psychiatric report ordered by Ryder J was not yet available. The full analysis is set out in the concluding paragraphs in my judgment, see in particular paragraphs 171-176.
20. At the next hearing on 6 May, however, by which time the psychiatric report was available, I concluded that the balance had swung in favour of an order returning E home and I duly made an order to that effect.
21. The costs of the proceedings up to and including the hearing of 6 May have been reserved and now fall to be decided. On behalf of G and F (both of whom were at all material times publicly funded in these proceedings) an application is made for the local authority to pay all their costs on an indemnity basis. On behalf of E, the Official Solicitor, who has acted as his litigation friend throughout these proceedings, seeks an order that the local authority should pay fifty per cent of his costs on the standard basis.

THE LAW

22. The rules governing the award of costs in the Court of Protection are set out in Part 19 of the Court of Protection Rules. The following rules are relevant to this application.
23. Rule 157, entitled "Personal welfare – the general rule", provides:

"Where the proceedings concern P's personal welfare, the general rule is that there will be no order as to the costs of the proceedings or of that part of the proceedings that concerns P's personal welfare."

24. Rule 159, headed "Departing from the general rule", provides as follows:

"(1) The court may depart from rules 156 to 158 if the circumstances so justify, and in deciding whether departure is justified, the court will have regard to all the circumstances including

(a) the conduct of the parties;

(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(c) the role of any public body involved in the proceedings.

(2) The conduct of the parties includes

(a) conduct before, as well as during, the proceedings;

(b) whether it was reasonable for a party to raise, pursue or contest a particular issue;

(c) the manner in which a party has made or responded to an application or a particular issue; and

(d) whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response…"

25. Rule 160 provides that, subject to the provisions of the Court of Protection Rules, some parts of the Civil Procedure Rules 1998 shall apply, with appropriate modifications, to costs incurred in relation to proceedings under the Court of Protection Rules. This includes Part 44 of the Civil Procedural Rules relating to costs. Of these latter rules, the following are relevant to the current applications.
26. Under CPR 44.3(1) "the court has a discretion as to

(1) As to whether the costs are payable to one party to another;

(2) The amount of those costs;

(3) When they are to be paid."

27. Under CPR 44.3(6), "the orders which the court may make under this rule include an order that the party must pay

(1) a proportion of another party's costs;

(2) a stated amount in respect of another party's costs;

(3) costs from or until a certain date only;

(4) costs incurred before proceedings have begun;

(5) costs relating to particular steps taken in the proceedings;

(6) costs relating only to distinct part of the proceedings; and

(7) interest on costs from or until a certain date, including a date before judgment."

28. The distinction between indemnity and standard costs are set out in CPR 44.4 which provides inter alia as follows.

"(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs

(a) on the standard basis; or

(b) on the indemnity basis,

but the court will not in either case allow costs which have been unreasonably incurred or unreasonable in amount.

(2) Where the amount of costs is to be assessed on the standard basis, the court will

(a) only allow costs which are proportionate to the matters in issue; and

(b) resolve any doubt which it may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party.

(3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs have been reasonably incurred or reasonable in amount in favour of the receiving party."

29. Counsel referred me to a number of reported cases in the course of their submissions. There is little guidance about costs in reported cases in the Court of Protection since the implementation of the MCA. A comparison was made by Miss Gillian Irving QC on behalf of the local authority between cases involving personal welfare issues in the Court of Protection and proceedings concerning children in the Family Division. On behalf of G, my attention was drawn to a passage in the notes in the White Book dealing with standard and indemnity costs at page 1230-1233 of the 2010 edition and in particular to the following passage:

"Where the court is considering whether a losing party's conduct is such as to justify an order for costs on the indemnity basis, the minimum nature of the conduct required is, except in very rare cases, that there has been a significant level of unreasonableness or otherwise inappropriate conduct in its wider sense in relation to that party's pre-litigation dealings with the winning party, or in relation to the commencement or conduct of the litigation itself."

My attention was also drawn on behalf of G to the decision of the Court of Appeal in Excelsior Commercial and Industrial Holdings Limited v Salisbury Ham Johnson [2002] EWCA Civ 879 in which it was stated (by Waller LJ) at paragraph 39:

"The question will always be: is there something in the conduct of the action or the circumstances of the case which takes the case out of the norm in a way which justifies an order for indemnity costs?"

SUBMISSIONS

30. I have the benefit of clear and thorough written and oral submissions from Miss Kerry Bretherton on behalf of G. I also have the benefit of written submissions from counsel previously instructed on behalf of F and a lengthy written statement by the solicitor who has until recently represented F on the issue of costs. That latter statement runs to forty-four pages with exhibits exceeding 120 further pages, and includes both factual matters and submissions. I consider this document to be of disproportionate size for the issue at hand. It also contained assertions which, in my judgment, were expressed in inappropriate terms, for example accusing the local authority of maliciously exaggerating its claim against F and describing the local authority's conduct as "appalling and shocking". In the event, F was not represented at the hearing at the costs application and so I did not have the benefit of supplementary oral submissions on her behalf. Both G and F seek an order that the local authority pay one hundred per cent of their costs on an indemnity basis. On behalf of the Official Solicitor, I had written and oral submissions which were, in contrast, a model of succinctness – well-measured and pertinent. The Official Solicitor seeks an order that the local authority to pay fifty per cent of his costs on the standard basis. In reply, the local authority made detailed submissions through leading counsel, Miss Irving both in writing and orally, resisting any order for costs. Not for the first time in this case, the parties were thus far apart in their respective submissions.

THE ARGUMENTS FOR G AND F

31. The principal argument advanced on behalf of G and F is that the local authority's conduct in removing E from F's care was unlawful and sufficient to justify not only departing from the general rule in rule 157 of the Court of Protection Rules but also an order for costs being made on an indemnity basis. In support of this submission, Miss Bretherton relied principally on my judgment delivered on 26 March 2010 and in particular paragraph 81:

"It is a cardinal feature of Article 5 that 'no one shall be deprived of his liberty save … in accordance with a procedure prescribed by law'. The removal of E from F's care was an arbitrary act. There was no attempt to follow the legal procedure of urgent and standard authorisations which had become law only a few days earlier. All parties now agree that in the absence of any authorisation under Schedule A1 of the MCA, or any order of the Court under that Act, E was unlawfully deprived of his liberty when placed at the V Unit and Z Road. In particular, the local authority now accepts that significant mistakes were made in this matter. It failed to recognise that E's placement in the V Unit amounted to a deprivation of liberty to which the DOLS applied. Furthermore, it failed to recognise that the placement at Z Road constitutes a deprivation of liberty and that it should have sought approval from the Court under s.16 before it occurred. It must be noted, however, that the local authority took a very long time to acknowledge these grievous errors. The solicitors' correspondence reveals that the authority was maintaining that DOLS did not apply in this case up to and beyond the start of these proceedings. I suspect that it was only when they read the analysis set out in Mr. Read's report that they realised their mistake. In fairness, I should record that little if any blame attaches to Miss T. In evidence, she told me about the paucity of training she had received on the MCA. Although she has requested training from her employers on the DOLS procedures, (which, it will be recalled, are set out in a schedule running to 188 paragraphs plus a Code of Practice), she has yet to receive it. The responsibility for the blatant errors that occurred in this case clearly lies higher up the line of management."

32. In addition, reliance is placed on behalf of G of my analysis of the breach of E's Article 8 rights set out in paragraphs 83-90 of that judgment which I need not recite here. I concluded that part of my judgment as follows:

"The Official Solicitor contends that the overall consequences of the local authority's errors are threefold. First, E was removed from his home in the interim when he should not have been, without lawful authority, in breach of his procedural Article 5(1) and 8 rights, and this position was not authorised by the court for approximately 8 months. Secondly, E was removed from home in the interim when he should not have been, in breach of his substantive Article 5(1) and 8 rights. Thirdly, to E's detriment, the decision which the Court (and the Official Solicitor in considering his position on E's behalf) faces now is more difficult and finely balanced than the decision it would have faced in April 2009. Then, submits the Official Solicitor, the evidence would not have justified an immediate move away from F. Now, the decision must take into account all the uncertain factors associated with one or more further moves. Save that I am unable to say whether or not the Court would have sanctioned the removal in April 2009, I accept the Official Solicitor's analysis. The errors perpetrated by the local authority in this case are grave and serious."

33. The consequence of the local authority's failure to recognise that E's removal from F's care and placement at the V Unit and Z Road infringed Articles 5 and 8 and engaged the MCA, requiring a best interests decision and the DOLS process, was that G was obliged to start these proceedings. Miss Bretherton submits that, if the local authority had acted lawfully, the matter would have been resolved either without any litigation at all, or, at the very least, referred to the court at a much earlier stage, in all probability without G being joined as a party. Miss Bretherton further submits that if the proper procedure under the MCA had been followed in April 2009, the allegations against F and the best interests analysis, would have been resolved in a far more straightforward fashion. The lengthy and difficult balancing exercise carried out by me at the hearing in January to March 2010, when E had been living away from F's care for nine months, would have been avoided. Miss Bretherton contends that alternative arrangements would in all probability have been adopted which might have obviated the need to remove E from F's care at all, pending the outcome of the safeguarding investigation. Furthermore, submits Miss Bretherton, all the legal arguments advanced on behalf of G and F at the hearing flowed from this unlawful deprivation of liberty.
34. These arguments are essentially the same as those advanced in the written documents on behalf of F. Her solicitor submits that on any analysis there has been a "significant level of unreasonableness" on the part of Manchester City Council. Miss Bretherton adds that nothing could be more unreasonable than the breach of Article 5 and 8 rights perpetrated by this local authority in this case.

SUBMISSIONS ON BEHALF OF THE OFFICIAL SOLICITOR

35. Miss Amy Street adopts a more guarded approach on behalf of the Official Solicitor. She concedes that, if the local authority had acted lawfully it is likely that some proceedings would have been required to facilitate the investigation of the allegations against F and regulate E's best interests. There is, she submits, a significant chance that E would have been removed in the interim, although it is, on balance, unlikely, she submits, that this would have occurred. If E had been removed, it would have only been after expert evidence had been attained. Furthermore, the Official Solicitor accepts that there were matters in the proceedings for which Manchester City Council were not responsible. By way of example, Miss Street points to the issues concerning F's criminal convictions, and the lengthy arguments advanced on behalf of G which were, in a number of respects, unsuccessful. For these reasons, the Official Solicitor concludes that it would be inappropriate to order the local authority to pay all of E's costs. Nevertheless, Miss Street contends that Manchester's conduct is sufficient to justify a departure from the general rule in rule 157. Adopting what she concedes is a "broad brush" approach, she invites the court to order the local authority to pay fifty per cent of E's costs. She does not contend for any order to be made on an indemnity basis.

THE LOCAL AUTHORITY'S SUBMISSIONS IN RESPONSE

36. On behalf of the local authority, Miss Irving robustly opposes any order for costs at all and makes a series of interlinked points which can be summarised as follows.

(1) The MCA is designed to provide procedures whereby the welfare of vulnerable adults can be promoted and safeguarded. There is a danger that an order for costs in this case will deter local authorities from taking steps to achieve this end.

(2) The issue concerning E arose in early 2009 when public bodies such as Manchester City Council were having to come to terms with the new, highly complex provisions. In particular, the concept of "deprivation of liberty" was difficult, and there was a considerable amount of uncertainty about whether a placement such as that provided to E at V Unit and Z Road would constitute a deprivation of liberty. In support, Miss Irving points to the observations of Baroness Hale in an article "Welcome to the DOLS?" [2010] CCLR 7. She submits that, in those circumstances, it would be "a little harsh" to expect the local authority to be fully au fait with the principles and the new provisions. She volunteered the information that Manchester City Council had been advised by counsel previously instructed that the placements did not constitute a deprivation of liberty. It was only after Miss Irving was instructed that it was conceded that they did in fact give rise to such a deprivation.

(3) There were reasonable grounds for the local authority to be concerned about E's welfare in F's care. These concerns would have been sufficient to justify E's lawful removal from her care. The local authority's only mistake was that they omitted to go through the proper procedures of granting an authorisation under DOLS in respect of the placement at the V Unit and subsequently applying to the Court of Protection for an order under section 16 or section 48 in respect of the placement at Z Road.

(4) The hearing that took place in January to March 2010 was, in effect, a postponed version of the hearing that would have taken place in the summer 2009 if the local authority had not made what Miss Irving was in effect characterising as a technical error. The enquiry concerning the allegations made against F, and the best interests analysis, and the cross examination of F and the legal issues would have been necessary whenever the hearing took place. Thus, submits Miss Irving, the hearing itself did not incur any additional costs over and above those that would have been incurred whenever it had been held.

(5) In the event, the court did not decide in March 2009 that E should go home. Furthermore, the Official Solicitor did not support the return home of the outset of the hearing in January. Miss Irving points out that it was only in his final submissions that the Official Solicitor changed his position and supported such a return.

(6) Furthermore, submits Miss Irving, the costs were added to by delays and arguments for which the local authority was not responsible. She cites delays attributable to the fact that G had not read all the papers and delays in agreeing the terms of the letter of instruction to the psychiatrist.

(7) The local authority is facing significant cuts in its funding, amounting to twenty eight per cent and equivalent to £8.5 million. It is not insured against orders for costs. Any order made against the local authority would thus come out of its adult care budget.

(8) It would be wrong to make an order for costs given the pressures under which the local authority's overworked legal unit was operating.

(9) It is erroneous to say that G would not have been involved in any proceedings if she had not been obliged to start them herself. Miss Irving submitted that G would have been joined in any event as E's closest relative.

(10) In all the circumstances, Miss Irving submits that there is nothing to justify departing from the general rule in rule 157, let alone, making any order for costs on an indemnity basis.

37. In making these submissions, Miss Irving drew an analogy with the approach to costs orders against local authorities in public law children's cases, citing inter alia London Borough of Sutton v Davis (Costs) (No. 2) [1994] 2 FLR 569, Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755, Re X [2006] EWHC 510 and Re XY and Z (Children) [2010] EWHC B12 (Fam).

DISCUSSION AND CONCLUSIONS

38. The work carried out by the local authorities and other public bodies such as NHS Trusts in this important field cannot be underestimated. Thousands of dedicated professionals and support staff devote their lives to helping people with learning disability, for long hours and low salaries. All public bodies face very difficult times as they struggle to come to terms with the implications of the cuts in public expenditure recently announced. The Court of Protection must work with these professionals under the collaborative philosophy underpinning the MCA and its Code of Practice to which I alluded in the earlier judgment concerning deputyship in these proceedings.
39. That does not mean, however, that local authorities, or any other public bodies, can be excluded from liability to pay costs in appropriate cases. The rules about costs must be applied fairly to all litigants, regardless of who they are. In this case, all the costs of litigation will be borne by the public purse. The Legal Services Commission is an equally hard-pressed public agency and the Commission – and the taxpayers who fund it – are entitled to look to the Court to apply the costs rules impartially and ensure that there is a level playing field. Gone are the days when it is appropriate for a court to dismiss applications for costs on the basis that it all comes out of the same pot. Such an approach would undermine confidence in the courts and distort public administration and accountability. I deprecate the practice of relying on arguments that the impact of a costs order would reduce the local authority's social care budget. The Legal Services Commission could equally well argue that the denial of a costs order in this case in favour of G, F and E will reduce the funds available for other cases. If a costs order is made, that will be the fault of Manchester City Council, not the Court.
40. Of course, it is right that the Court should follow the general rule where appropriate. Parties should be free to bring personal welfare issues to the Court of Protection without fear of a costs sanction. Local authorities and others who carry out their work professionally have no reason to fear that a costs order will be made. The submission that local authorities will be discouraged from making applications to the Court of Protection if a costs order is made in this case is a thoroughly bad argument. The opposite is, in fact, the truth. It is only local authorities who break the law, or who are guilty of misconduct that falls within the meaning of rule 159, that have reason to fear a costs order. Local authorities who do their job properly and abide by the law have nothing to fear. In particular, the Court of Protection recognises that professional work in this very difficult field often involves very difficult judgments and decisions. The Court is not going to impose a costs burden on a local authority simply because hindsight demonstrates that it got those judgments wrong.
41. In this case, however, I am entirely satisfied that the local authority's blatant disregard of the processes of the MCA and their obligation to respect E's rights under the ECHR amount to misconduct which justifies departing from the general rule. Miss Irving boldly relies on the ignorance of the local authority's staff as an excuse and submits that the complexity of the statutory provisions left large numbers of professionals uncertain as to the meaning of "deprivation of liberty". Given the enormous responsibilities put upon local authorities under the MCA, it was surely incumbent on the management team to ensure that their staff were fully trained and properly informed about the new provisions. If a local authority is uncertain whether its proposed actions amount to a deprivation of liberty, it must apply to the Court. As it is, the local authority's actions in this case would have infringed E's Article 5 and 8 rights under the old law as well as under the MCA.
42. Furthermore, I do consider the local authority's conduct, certainly up to the moment when the issue of deprivation of liberty was conceded at the start of the hearing in January, amounted to "a significant degree of unreasonableness" so as to give rise to a liability for costs on an indemnity basis.
43. Miss Irving is on stronger ground when she submits that some form of investigatory process, almost certainly involving court proceedings, would have been required in this case in any event. The proper course would have been the making of an urgent authorisation (by the V Unit) and/or standard authorisation (by the local authority) which could have been reviewed by the Court of Protection under section 21A of the MCA. When E moved to Z Road, a domiciliary care provider not covered by DOLS, the local authority should have applied to the Court of Protection for an order under section 16 or an interim order under section 48. In one or both of these ways, the issues of E's alleged ill-treatment by F, and his future residence and overall best interests, would have come before the court. But, in my judgment, the hearing would have been significantly shorter, and the issues less complex, than they were by the time of the hearing in January to March 2010. In particular, the best interests analysis would have been less complicated than it was by that date when E had been living away from F for over nine months. Furthermore, if the local authority had followed the proper procedure under the MCA, G's role in the proceedings would, in my judgment, have been much more peripheral. It is highly likely that she would not have had to initiate any proceedings herself, and possibly would not have even been a party at all. In the event, it was G who had to take the lead in establishing that the local authority's conduct amounted to a deprivation of E's liberty.
44. Assessing the extent to which the delays in the commencement of proceedings extended the scope of the necessary enquiry is very difficult and a "broad brush" approach is unavoidable. In considering the scope of the enquiry which the court was required to carry out, I bear in mind that not all of the delays were attributable to the local authority.
45. In all the circumstances, I conclude that this is a case for departing from the general rule set out in rule 157 of the Court of Protection rules, and I make an order in the following terms:

(1) That the local authority should pay the costs of G, F and E, including pre-litigation costs, up to and including the first day of the hearing before me on 14^th January 2010 on an indemnity basis.

(2) The local authority shall pay one third of the costs of G, F and E from that date up to and including the hearing on 6 May 2010 on a standard basis.

(3) All costs will be subject to a detailed assessment, if not agreed.

POSTSCRIPT

46. Following the delivery to counsel of a draft of this judgment, Miss Bretherton on behalf of G delivered a further document in which she raised two further "consequential matters".
47. First, the appeal against part of the order made and judgment delivered at the conclusion of the hearing in March 2010 was dismissed by the Court of Appeal, but Miss Bretherton has informed me that an application for permission to appeal to the Supreme Court is being considered. At her request, I therefore grant liberty to apply for a review of this costs order in the event of a successful appeal to the Supreme Court.
48. Secondly, developing a point she made in passing in oral argument, she submits that any damages that E recovers in due course for breach of human rights will be subject to the statutory charge imposed under the Community Legal Services (Financial) Regulations 2000 in respect of the publicly-funded costs of the litigation, and that E will therefore suffer a reduction in the damages he actually recovers unless the local authority is ordered to pay all of his costs.
49. I do not propose to make any amendment to the order set out above as a result of these supplemental submissions, for the following reasons. First, Miss Bretherton represents G, not E. Miss Street, who represented E instructed by the Official Solicitor, did not invite me to increase the costs order on this ground. I recognise that G as E's sister is anxious that her brother should recover damages, but she is not his litigation friend. Secondly, I have not heard full argument about the impact of the Regulations, and am far from convinced that Miss Bretherton's interpretation is necessarily correct. But thirdly, and finally, if she is correct, I would not consider it appropriate in this case to increase the level of costs paid by the local authority on the ground she advances. I have endeavoured to assess the local authority's liability in costs applying the law fairly as I understand it to be. It seems to me to be highly questionable whether it is appropriate to increase that liability simply to enable a litigant to avoid the impact of the statutory charge under regulations carefully crafted and approved by Parliament.
50. Miss Bretherton informed me in her supplemental document that, in the event that I was against her on this point, she would seek permission to appeal. That permission is refused for the grounds set out in paragraph 49.