Judge rejects application by Official Solicitor for council to pay costs in s.21A proceedings

A Court of Protection judge has rejected an application by the Official Solicitor (OS), acting as litigation friend, for the London Borough of Harrow to pay its costs in proceedings under Section 21A of the Mental Capacity Act 2005.

In BP v The London Borough of Harrow (Costs) [2019] EWCOP 20 the case had been listed for a final hearing on 24 and 25 January 2019. The hearing opened on 24 January 2019, but was adjourned to 25 and 26 April 2019 and costs were reserved.

District Judge Sarah Ellington said that as it turned out, the day before the adjourned final hearing she considered an application dated 18 April 2019 on 24 April 2019 and made a final order in respect of the substantive S21A challenge.

“Pausing there, we can see that the court had by then set aside 4 days of hearing time, a scarce resource, which were not in fact needed,” she said.

The application dated 18 April 2019 proposed by consent a final order on the substantive S21A challenge, and the district judge made a final order.

However, the parties identified a dispute in respect of the costs of the January hearing.

The relevant circumstances of the adjournment of the January hearing were that the respondent, Harrow, offered at the hearing a trial of BP returning home.

If the trial at home had been successful, the possibility of a return home would then have been relevant in the court's consideration of whether the qualifying requirements for a deprivation of liberty were met.

If the trial at home had not been successful, this would also have been relevant to the court's consideration of whether the qualifying requirements for a deprivation of liberty were met.

The trial at home was unsuccessful and BP returned to the care home where he was and is deprived of his liberty on the basis of a final order proposed by the parties by consent without a hearing.

The OS submitted that this was a case where it was appropriate to depart from the usual costs rule – that each party bear its own costs – and to order the costs of the January hearing be paid by the council because of its consistent failure to offer a trial period at home before the start of and for the duration of the proceedings, and its decision to do so only after the January hearing had commenced.

The OS said the issue had been raised in correspondence and Harrow had declined to accept liability for the costs thrown away at the January hearing.

For the council, it was said that this was a case where it was not appropriate to depart from the usual costs rule and that if it was, an order in the terms affixed to the respondent's submissions is appropriate. That draft order provided that the applicant do pay the council’s costs arising out of and occasioned by its preparation of the bundle, attendance at court on 24th January 2019 and the drafting of a cost's rebuttal.

District Judge Ellington said that, overall, she could see the basis on which the OS considered an application for costs to be justified. “However, this was a finely balanced case on the Applicant's own submissions in position statements, in particular that of 15 June 2018.”

The judge said she bore in mind the authorities on which the parties relied, in particular the applicant's reliance on the comments of Hooper LJ in the Court of Appeal. But she noted that the circumstances of Manchester City Council v. G, E and F [2010] EWHC 3385 were quite different.

The district judge said: “On balance and considering the circumstances as a whole, I am not persuaded that it is appropriate to depart from the general rule on this occasion. I decide this based on the chronological position of the parties set out above and all the circumstances. The Respondent's conduct falls short, to what degree is immaterial, of the necessary test. This case does not represent a blatant disregard of the processes of the Act and the Respondent's obligation to respect BP's rights under ECHR as in the Manchester case (paraphrased slightly).

“Although it is not now material, I will add that if I had been minded to not apply the general rule on costs, which I am not, there would have been no prospect in all the circumstances, of making an order in the terms requested by the Respondent.”