Court of Protection ready to make adverse costs orders, if the conduct of proceedings found to be ‘so poor, so incompetent’

Commissioners and local authorities would be well advised to take note of the Court of Protection’s decision in the case of London Borough of Lambeth v MCS and Lambeth CCG and the cost consequences of "disorganised thinking, planning and management".

The case concerns the conduct of the local authority and the CCG’s failure to progress the repatriation of a Colombian woman (MCS) who suffered a hypoxic brain injury, following a cardiac arrest in 2014. There was no dispute that MCS lacked capacity, nor was there any dispute that it was in MCS’s best interests to return to Colombia in accordance with her wishes. 

Instead, MCS remained at London’s Royal Hospital for Neurodisability for over three years until her return to Colombia in January 2018, some four years after her brain injury. An ending described by the judge as "Finally, a happy ending to a tragic story".

A read of both decisions makes it obvious that the court was "deeply critical of the manner in which this case was handled both before and after the institution of proceedings". 

Proceedings were only instigated because no constructive progress was being made to repatriate MCS – a "situation which could and should have been avoided".

By the end of 2014 or early 2015 at the latest, MCS was ready for discharge but "enquiries lacked focus or persistence". The judge went as far as to describe the enquiries as “ineffectual, even amateur”.

The judge’s acerbic comments on the two statutory bodies’ failings are set out at paragraph nine of the first decision and paragraph three of the second decision

In particular, he said “whilst I have no doubt that the Applicant and/or Second Respondent believe they worked tirelessly, the bald fact is that they did not….Apparent ‘unexplained difficulties in dealing with the Colombian authorities and organisations’ were not subsequently born out…. too little intelligent professional focus was brought to bear….To submit that the CCG was ‘throughout commendably assiduous’ in seeking the return to Colombia is about as misplaced and offensive a submission as could possibly be contemplated. The judgment records, order after order which was not complied with.”

Costs order in the Court of Protection

Proceedings in the Court of Protection "almost never" attract an enquiry into the issue of costs as the general principles do not sit easily within the parameters of the court, commented the judge. However, there will "occasionally" be cases where the court will depart from the general rule. The judge, in this case, concluded "without hesitation" that the circumstances of this case are "so poor and so extreme" to justify an adverse costs order against the local authority and the CCG.

A time for reflection

This decision serves as a reminder to local authorities and CCGs that courts are willing to make adverse costs orders, if the court finds the failings are "so poor, so extreme". Asserting that efforts have been stymied by the "novelty of the situation" is no defence – the expectation is to bring an increased level of "intelligent professional focus" to conclude matters. You have been warned!

Do get in touch if you have novel or tricky cases that you would like support with – we have an experienced and friendly team ready to help.

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