The general rule in personal welfare proceedings in the Court of Protection is that each party bears their own costs. But there are exceptions to this rule.
Rule 157 of the Court of Protection Rules 2007 states that: “Where the proceedings concern P’s personal welfare, the general rule is that there will be no order as to costs of the proceedings or that part of the proceedings that concerns P’s personal welfare”.
The general rule therefore, is that each party involved in Court of Protection proceedings concerning P’s personal welfare bears their own costs.
However, rule 159 of the Court of Protection Rules 2007 provides that in some circumstances, the court may depart from the general rule. When considering whether a different costs order should be made, the Court of Protection will consider the following:
- the conduct of the parties;
- whether the party has succeeded on part of their case, even if they have not been wholly successful; and
- the role of any public body involved in the proceedings.
When considering the conduct of the parties, the Court of Protection will have regard to:
- conduct before and during the court proceedings;
- whether it was reasonable for a party to raise, pursue or contest a particular issue;
- the manner in which a party has made or responded to an application or a particular issue;
- whether a party who has succeeded in their application or their response to an application exaggerated any matter contained in the application or response.
Personal welfare cases in the Court of Protection
These points were considered in the matter of WBC v CP [2012]. In this case, one of the parties involved in personal welfare proceedings made an application seeking an order that their costs be paid by another party, the Local Authority. The Court of Protection therefore had to consider whether it should follow the general rule and make no order as to costs or whether it should depart from rule 157.
Reference was made to the case of Re C [2011] which involved a personal welfare matter – the deprivation of C’s liberty. C had autism and severe learning disability. He had been a resident in a school for a few years. As a result of his behaviour, C was managed by being placed in a padded blue room when his behaviour was particularly challenging and he was prevented from leaving the blue room for reasons of aggression and at times, nakedness, as he often stripped naked when placed in the blue room. The Court of Protection had to consider whether C was deprived of his liberty when he was secluded in the blue room. In making its decision, the Court of Protection heard oral evidence from 9 expert witnesses and also considered evidence from C’s brother who became a party to the proceedings.
The court held that the Local Authority should have adopted the Mental Capacity Act 2005’s approach and made an application to the Court of Protection before any deprivation of liberty occurred. The Local Authority subsequently admitted to breaching its community care obligations towards C.
Pursuant to rule 157 of the Court of Protection Rules 2007, each party should have borne their own costs in these proceedings. However, C’s brother made an application for an order that the court departs from the general rule and the Local Authority pays C’s costs.
The Court of Protection's decision in WBC v CP [2012]
The Court of Protection decided that, in this particular instance, it would be appropriate to depart from the general rule since:
- The Local Authority’s actions were tainted with illegality and their decision making was impoverished and disorganised;
- Had the local authority complied with the Mental Capacity Act 2005, C’s brother would not have needed to be heavily involved in the proceedings;
- C’s brother had made a useful contribution to the proceedings;
- The Local Authority could have arrived at the position concluded by the court many months earlier.
In making its decision, the Court of Protection considered rule 159 and in particular, the Local Authority’s conduct both before and during the proceedings.
Conclusion
The parties involved in personal welfare proceedings should not always rely on the general rule on costs. The cases of Re C [2011] and WBC v CP [2012] are a warning to parties that adverse costs orders can be made in some cases. Parties, and in particular public bodies, should review their position and the strengths and weaknesses of their case carefully. If they have failed to comply with their statutory duties, whether in bad faith or not, they should reconsider their position and make appropriate concessions and apologies instead of pursuing the matter and causing the parties involved to incur costs.
