Judge refuses costs appeal by professional deputy after failed application to be appointed

Ms Justice Harris heard that Andrew Riddle brought an appeal against an order by DJ MacCuish which refused his application for costs when he had applied to be the  deputy for vulnerable adult NA’s property and financial affairs.

The judge found there was no danger to the viability of the professional deputy system were Mr Riddle’s not awarded costs.

Mr Riddle’s application failed when NA was found to have capacity following receipt of a s 49 report.

NA represented himself and had opposed Mr Riddle’s application throughout and the district judge determined there should be no order for costs.

Mr Riddle asked the Court of Protection to set aside DJ MacCuish's decisions and grant an inter-partes costs order of some £10,000 to be paid by NA. 

The court was told that NA sustained frontal lobe damage more than 20 years ago following an assault, which has a mild impact on his executive functioning, compounded by excessive alcohol use. 

In October 2022, Mr Riddle made a COP1 application seeking appointment as a professional deputy for NA after a referral by City of York Council, which believed NA lacked capacity to manage his affairs.

But a later medical report found he had the capacity to manage his property and affairs.

DJ MacCuish decided that since NA had succeeded in opposing the deputyship, it would be contrary to justice for him to pay any of Mr Riddle’s costs.

Mr Riddle appealed to the Court of Protection on two grounds: that the district judge failed to apply rule 19.2 of the Court of Protection Rules 2017) correctly or at all, and that even had his decision been correct, he erred in the exercise of his discretion by failing to give weight to material factors.

Harris J said DJ MacCuish “did not anchor the exercise of his discretion in the framework provided by Part 19 of the Court of Protection Rules” and that this was an error of law allowing the appeal on that ground.

However, Harris J added that in determining whether the Court should depart from the general rule in Rule 19.2, and in considering all the circumstances of the case, she was “not persuaded, as argued by Mr Riddle, that where an application is made in good faith and accompanied by supportive capacity evidence, the circumstances would have to be ‘truly exceptional’ to justify departure from the general rule. Such a highly restrictive approach to Rule 19.5 and the Court's overarching discretion in matters of costs is to place an unhelpful gloss on the rules.”

Harris J said for Mr Riddle to seek an inter partes order against NA “goes beyond what is deemed as necessary in welfare matters to ensure applications are properly placed before the court”.

She was not persuaded by an argument that a failure to award professional deputies such as Mr Riddle their costs would lead to gaps and difficulties in the system, as if deputies were at risk of not recovering their costs, they were likely to decline making applications, placing the burden back on already over-stretched local authorities.

“If the proposed deputy is satisfied on the information provided that the application does have merit, they will make the necessary COP1 application,” Harris J said.

“They will however do so knowing that in accordance with the rules they are taking a calculated risk as to whether the court will disapply the usual rule in 19.2.”

Evidence before the court suggested unsuccessful deputyship applications were  “relatively rare” and the risk of a failed application “one which any professional deputy can perhaps reasonably be expected to mitigate against within the overall structure of their business”.

While Mr Riddle made the application in good faith he was “not carrying out a charitable public service”, Harris J said.

“He acts in the course of his business for profit. Ultimately, he seeks appointment as a professional deputy to further that business.”

She concluded that as a matter of natural justice, “it may appear perverse that NA should pay the costs of Mr Riddle - who is a complete stranger to him - for an application he did not invite, always opposed, had no choice but to respond to, and ultimately was successful in defending.

“Unlike Mr Riddle, NA did not choose this litigation. He is not at fault in any way. This has to be a weighty consideration in determining the issue of costs.”

Harris J said this meant there would be no order for costs.

Mark Smulian