This case relates to four test cases started by the NHS Dorset Clinical Commissioning Group seeking clarification in the law over the deprivation of liberty of mentally incapacitated adults. This is a separate issue all together as the Judgement given by Mr Justice Baker relates to the costs of the Application issued by the Applicant.
The background of the Application is still relevant and is detailed below.
“The four cases all involved mentally incapacitated adults living at home and being supported under care plans devised and administered by the Applicant. Following the decision of the Supreme Court in Cheshire West and Chester and Council v P and another; Surrey County Council v P and Others  UKSC 19, and notwithstanding the identification in that case of the “acid test” for determining whether a person is being deprived of their liberty, namely whether he or she is under continuous supervision and control and is not free to leave, there remains considerable uncertainty as to the precise circumstances in which many incapacitated adults will be held to be deprived of their liberty. The Applicant therefore decided to see clarification in respect of one significant group of people, namely those who were living at home but subject to care plans which, one on interpretation, satisfied the “acid test”. To that end, applications to the Court of Protection were made in respect of four individuals, and in each case the Applicant sought, by way of a preliminary issue, a declaration in respect of the issue of deprivation of liberty.”
The issues in respect of which declarations were sought by the Applicant were as follows:
“i) Whether, for the purposes of Article 5 of ECHR and s64(5) of the Mental Capacity Act 2005, P was deprived of his/her liberty if s/he is not free to leave and is subject to continuous supervision and control but:
a) the restrictions to which he/she is subject are imposed in his/her own home (whether by family members or by paid carers) and;
b) the restrictions are necessary and proportionate for the purpose of providing P with care;
ii) in any event, whether responsibility for any deprivation of liberty in P’s own home is to be imputed to the Applicant solely by virtue of the fact that it provides NHS continuing care funding for P’s care.”
In each case the Applicant sought a declaration that the respondent was not being deprived of their liberty. The Applications were supported by detailed grounds drafted by leading Counsel.
“It was plain that to some extent the issues raised by the applications traversed ground that had not been explored in the Cheshire West case. It was asserted by the Applicant that the issues affected a large number of individuals across the country and that, within its own area, there were over 100 other cases which would be affected by the decision and which would require judicial authorisation for a deprivation of liberty if the declarations sought in the case were refused. For that reason, I agreed to consider the matters raised as a preliminary issue and case management directions were duly given, including inviting the Official Solicitor to act as litigation friend for the four respondents.”
Turning to the issue of costs. Two of the Respondents were not eligible for public funding when taking into account their personal means and it was decided that it was not appropriate to use the respondent’s own funds to support this test case. The Official Solicitor therefore agreed to act for the remaining two Respondents, LB and SHC who were eligible for public funding through the Legal Aid Agency.
The Official Solicitor instructed Counsel to prepare a written response to the Application as directed by Baker J within his Case Management Directions. Upon receipt of the written response the Applicant issued a further Application to withdraw the Application we are discussing at present, the grounds for that second Application were as follows:
“(1) the Applicant had reconsidered its position in the light of the Official Solicitor’s analysis;
(2) difficulties and delays in SHC’s case meant that only one of the original four test cases – LB – was now able to proceed to a hearing on the preliminary issues, and as a result the practical application of any decision to future cases may be very limited in scope;
(3) the recent publication by the Law Commission of its report on Mental Capacity and Deprivation of Liberty (Law Comm 372), which includes recommendations for reforms designed to obviate the need for an application to the Court of Protection in the vast majority of cases of alleged deprivation of liberty, whilst not removing entirely the need for the Court to consider the issue raised in the test cases, reduced the justification for those cases and also, it was conceded, reduced the strength of the Applicant’s argument that the circumstances of the four individuals did not amount to a deprivation of liberty.”
Following this second Application the Court ruled in favour of the Applicant and drew an order accordingly, however the Court left the question of costs reserved. The Official Solicitor provided submissions and sought all of his costs in relation to the Application concerning LB and 50% of his costs in relation to the Application concerning SHC, to be subject to detailed assessment if not agreed as per the usual inter parties process. The Judgement stated that the Official Solicitor’s costs in each cases were approximately £15,000.00.
Part 19 of The Court of Protection Rules 2007 govern the costs in Court of Protection matters and rules 156 to 158 provide general rules in respect of matters concerning property and affairs and personal welfare. The crucial rule in this matter is rule 157 which provides that there would be no order for costs in proceedings which concern part of “P’s” welfare, below, this of course is the general rule:
“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 that part of the proceedings that concerns P’s personal welfare.”
The availability to depart from the general rule is found at Rule 159, which provides the following:
“(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 acceded 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;
(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; and
(e) any failure by a party to comply with a rule, practice direction or court order.”
Baker J also quoted a himself from the Judgement given in G v E (Costs)  EWHC 3385 (Fam):
“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.”
The Respondents submitted that this case should not be considered as a typical welfare matter but rather instead similar to a civil claim and “Although the Applicant’s change of stance was welcome, it only came after considerable effort has been expended on behalf the Official Solicitor and at considerable cost to the Legal Aid Agency.”
Secondly, the Respondents submitted that the Applicant’s conduct under Rule 159 (1) (a) contended that it was unreasonable to issue four test cases as three of them were unsuitable for the overall test case and this should have been apparent at the outset. It was also argued that the Applicant could have funded the other two test cases which were stayed as they were not eligible for public funding. Thirdly, the Respondents argued that the third ground on which the Applicants sought leave to withdraw their Application was incorrect. The Law Commission’s Report was published before the first case managed hearing and therefore the Applicant should have appreciated that the justification for a test case was reduced before the Official Solicitor incurred any further expense.
The Applicants first submission was that it would not benefit the Official Solicitor to gain a costs order as the two Respondents were funded by way of Legal Aid Certificated, the costs would be borne by a public purse in any event. Barker J knocked this back and stated
“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.”
The Applicant’s further submissions were however more convincing and placed the Applicant in a much stronger position, it was argued on behalf of the Applicant that there was good public interest in this case given the uncertainty over the “acid test”. Moreover, it was submitted that the second ground to withdraw the Application carried the most weight, “in that there was not a sufficiently broad range of facts to give the Applicant sufficient guidance to the 100+ incapacitated adults for whom it is responsible for providing health care services at home”. It was further submitted that the Applicant could not have funded the other two stayed Applications due to budgetary constraints and it was finally submitted that the Official Solicitor had not demonstrated good reason under rule 159 to depart from the general rule given in rule 157.
Baker J was not willing to grant the Respondent an order for costs against the Applicant, for the following reasons:
“(1) I do 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.
(2) As is widely recognised, the law concerning deprivation of liberty under the Mental Capacity Act is in a state of some uncertainty. That is why it has been the subject of a review by the Law Commission whose final report contains recommendations for substantial reform. The government has now accepted the report and the majority of its recommendations, and acknowledged that the current Deprivation of Liberty Safeguards should be replaced “as a matter of pressing urgency” (see government response 14 March 2018).
(3) It was in my judgment understandable that the Applicant sought guidance on the issue of the impact of the “acid test” on cases involving incapacitated adults living at home, given the large number of individuals in those circumstances for whom it is responsible. In the words of rule 159(2)(b), it was reasonable for the Applicant to raise and pursue this issue.
(4) 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.
(5) 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.
(6) Although my comments in G v E (Costs) above were made in a different context, they do have some relevance here. Professionals working in this field often face difficult judgements and decisions. The Applicant made the decision to ask the court to consider the preliminary issue which, as Mr Ruck Keene fairly conceded, involved propositions of general and considerable importance. Subsequently, however, in the light of developments within the cases, the Applicant decided not to pursue the issue. 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.”
As such no order for costs in the proceedings were made save as to a detailed assessment of the Respondent’s publicly funded costs
This case may seem out of the norm, however the crux of this decision is establishing the circumstance which justify departing from the norm. We have seen in civil matters that the Court have not given specific guidance upon the issue of ‘good reason’ to depart from the norm. We have seen within this Judgement that for the Court of Protection the threshold for ‘good reason’ to depart from the norm is high. Nonetheless we feel that a sensible decision has been made by Baker J given the Court of Protection Rules 2007 and the facts of this particular case and also given the public interest in a matter such as this.