Costs News

12 April 2018
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Court of Protection rejects Official Solicitor’s claim for costs over abandoned test cases

The Court of Protection has rejected an application by the Official Solicitor to recover its costs in dealing with test cases over the deprivation of liberty of mentally capacitated adults which were ultimately dropped.

Mr Justice Baker said there were insufficient grounds to depart from the general rule in the Court of Protection that there was no order as to costs.

In 2017, the NHS Dorset Clinical Commissioning Group (DCCG) launched what were intended to be four test cases seeking clarification of whether mentally capacitated adults living at home but subject to care plans were being deprived of their liberty.

For various reasons, however, all of those applications, or in some cases that part of the application relating to the deprivation of liberty issue, were withdrawn, but not before the Official Solicitor had agreed to act for two of the respondents with the benefit of legal aid and had incurred around £30,000 in costs.

The Official Solicitor applied for all or part of those costs to be paid by the DCCG, arguing that the case should not be seen as typical personal welfare proceedings, but rather as more akin to a civil claim.

Further, the Official Solicitor had succeeded in his argument and said that, although the DCCG’s change of stance – that the four people were not being deprived of their liberty – was welcome, it only came after the Official Solicitors had put considerable work into the case.

However, in NHS Dorset Clinical Commissioning Group v LB and Anor [2018] EWCOP 7, Baker J did not agree, for several reasons. Firstly, he did not accept the suggestion that this was not a typical welfare case. “The application concerned a series of welfare cases in which an important preliminary issue arose on a point of law.”

It was, he continued, “widely recognised” that the law concerning deprivation of liberty under the Mental Capacity Act was “in a state of some uncertainty”, and so it was understandable that the DCCG sought guidance on this issue.

“Given the constraints under which all public bodies operate, the applicant was entirely justified in keeping under review the question of whether to pursue the case. Indeed, it would have been remiss if it had not done so.

“The fact that the applicant decided to abort the proceedings was a reasonable decision. To use the words in rule 159(2)(b) again, it was reasonable for the applicant to decide not to contest the issue in the light of developments in the litigation as described above.

“Although it is arguable that the difficulties in the individual cases could have been anticipated, I do not think that the applicant's failure to do so at an earlier stage could be described as litigation conduct of the sort to justify departing from the general rule…

“Professionals working in this field often face difficult judgements and decisions… In all the circumstances, I do not consider that its decision-making and overall conduct justifies a departure from the general rule as to costs.”

Accordingly, Baker J made no order as to costs, save for a detailed assessment of the Official Solicitor’s publicly funded costs.

The judge also rejected the DCCG’s argument that any order was moot because the costs would be borne by the public purse whatever order is made.

“This argument carries no weight with this court. The fact that a party who is seeking a costs order against another party has a benefit of a legal aid certificate is not a reason for refusing a costs order. The Legal Aid Agency's funds are limited and a party who has the benefit of a public funding certificate is entitled, when seeking a costs order, to be treated in exactly the same way as a party who does not have the benefit of such a certificate.”

Paul Bowen QC (instructed by DAC Beachcroft) represented the applicant, with Alex Ruck Keene (instructed by Irwin Mitchell LLP) for the respondents.



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