Costs in the Court of Protection: A Cautionary Tale (London Borough of Lambeth v MCS and another)

Published 3 octubre 2018

The Court of Protection has heavily criticised and ordered costs against a local authority and CCG for a delay of more than three years in organising the repatriation of a Colombian woman (MCS) who lacked mental capacity after suffering cardiac arrest resulting in hypoxic brain injury while living in the UK.

What was the background?

MCS was a 55 year old Colombian woman who suffered a cardiac arrest with resulting hypoxic brain injury in May 2014. She was admitted to London's Royal Hospital for Neurodisability but consistently expressed a wish to be repatriated to Colombia to be near her family and to be cared for by Spanish speaking clinicians. She was deemed medically fit for discharge at the end of 2014 but remained in hospital for a further three years before finally returning to Colombia in January 2018.

What did the court decide?

The court was deeply critical of how the Local Authority and CCG handled this case both before and during the court proceedings. In his Judgment, Mr Justice Newton wrote that 'whilst I have no doubt that the [Local Authority] and/or [the CCG] believe they worked tirelessly, the bald fact is that they did not'. He described their attempts to organise the repatriation as 'ineffectual, even amateur' and said that '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 court then ordered that the Local Authority and CCG bear the entirety of the costs of the proceedings. Costs decisions in the Court of Protection are rare – reflecting the inquisitorial and non-adversarial nature of the proceedings. In this case, however, Newton J concluded 'without hesitation' that the circumstances of the case were 'so poor and so extreme' that they justified an adverse costs order. The reasons for this were twofold:

• The proceedings arose directly out of the poor conduct by the public authorities. In agreement with the Official Solicitor, Newton J said that the proceedings should have been wholly 'unnecessary'. There was no dispute for the court to resolve – everyone agreed that MCS lacked capacity and equally agreed that it was in her best interests to return to Colombia. Court proceedings were only instigated by her RPR two years after MCS was ready to leave hospital because no constructive progress had been made in that time to repatriate her  – a situation which, the Judge commented, 'could and should have been avoided'.
  
  
• The public authorities' conduct during the court proceedings caused delays and costs to the other parties. Once started, the proceedings took a year to conclude. This was because, even though the matter was now in court, the authorities failed to comply with court orders, attend hearings or be proactive to progress the matter. This caused even more delay and cost to be incurred. The Judge said that this meant 'a vulnerable adult' had been 'kept unnecessarily miserable against her will, confined in an environment for much longer than was necessary'.

What can we learn from this and how can we help avoid it happening to you?

• This case was brought to court as a result of the lack of progress made by the public authorities. Complex cases require proactive, practical legal support to support efficient and timely care planning.
  
  
• The judgment records that order after order was not complied with by the authorities. Court set deadlines were often disregarded without explanation, evidence filed frequently failed to comply with what the court had requested and the Judge said he never 'received a position statement from the [Local Authority]'. Although the consequences of filing late or not at all in the Court of Protection do not necessarily bear the same consequences that they do in other areas of law, it is important to file evidence on time to avoid delay and to avoid antagonising the judge and other parties. We can support in the preparation and submission of timely, robust evidence that protects the interests of the individual and your organisation.
  
  
• The judgment also recorded that 'No one from the applicants, CCG or solicitors had the courtesy to attend' one of the hearings. We have extensive experience of representing health and social care providers in Court of Protection proceedings and can ensure that your position is clearly understood and any risks to your organisation in terms of costs or publicity are minimised.
  
  
• Many public authorities resist being joined as a party to proceedings for as long as possible because they assume that being joined will inevitably be expensive and time consuming. In this case, the CCG were joined very late in the proceedings. In spite of that, however, the court ordered the full costs of the proceedings jointly and severally, with no apportionment, against the CCG and the Local Authority. Had the CCG agreed to be joined to the proceedings at an earlier stage, it could potentially have assisted the court to reach a speedier conclusion and deflected some of the criticism and subsequent costs award.  We regularly provide strategic advice on the need for organisations to be involved in court proceedings, the most cost efficient way of managing any case, and the options in terms of limiting risk.

How we can help

Our national team of specialists have extensive experience in advising health and social care providers and commissioners and can provide strategic advice, support and training to CCGs in relation to all aspects of Court of Protection matters.