A high hurdle: Court of Protection not persuaded to depart from general rule on costs

A recent decision from the Court of Protection relating to the issue of costs within proceedings brought under section 21A of the Mental Capacity Act 2005 will be of interest to those working with those who lack capacity.

This was an application by P’s Official Solicitor as Litigation Friend for an order that the London Borough of Harrow should pay the costs of a hearing due to its consistent failure to offer a trial period of home care before the start of and for the duration of proceedings, and its decision to do so only after the hearing had commenced.

The Applicant submitted that this was a case where it was appropriate to depart from the usual costs rule – that there will be no order as to costs of the proceedings.

As readers will know, the CoP may depart from the rules if the circumstances so justify having regard to:

• the conduct of the parties;
• whether a party has succeeded on part of that party’s case, even if not wholly successful; and
• the role of any public body involved in the proceedings.

Overall, the CoP could “see the basis on which the Applicant considers an application for costs to be justified” but that this was a “finely balanced case on the Applicant’s own submissions”. However the court was not persuaded that it was appropriate to depart from the general rule in this case and the application was dismissed.

While the court accepted that Harrow’s conduct fell short it said that the degree to which it did was “immaterial, of the necessary test”. This case did not “represent a blatant disregard of the processes of the Act and the Respondent’s obligation to respect BP’s rights under the ECHR”.

It would seem that the bar has been set high when it comes to the CoP departing from the usual costs rule in applications concerning the personal welfare of patients who lack capacity.