Readers who have been involved in Court of Protection proceedings will be aware that the issue of the Official Solicitor's costs have been contentious.
The main issue to have come out following the introduction of the Mental Capacity Act 2005 and the expansion of the Court of Protection's remit is that the relevant rules did not include a presumption for half of the Official Solicitor's costs to be paid. Under the old best interests inherent jurisdiction decisions, the Official Solicitor had almost always obtained one half of their costs for cases in which they had a centrally based lawyer who could not obtain legal aid or if the protected person was otherwise not eligible for legal aid. This was on the basis of a longstanding practice of the court.
In the recent case of An NHS Trust v D, Mr Justice Jackson gave broad support to the principle that the Official Solicitor would be able to obtain half of his reasonable costs in proceedings.
The case itself had related substantively to a patient who was in a Permanent Vegetative State (PVS) and the application was supported by all of the parties involved.
The Official Solicitor applied for half of his costs. The Trust opposed this. Of note is that there was no criticism of the presentation of the case by the Trust by either the Court or the Official Solicitor. The Trust was a small one with its annual budget for legal expenses already overspent. The Official Solicitor outlined he was facing similar difficulties.
Mr Justice Jackson held that the new rules which came in with the Mental Capacity Act have not brought about a change in the considerations that the court should bear in mind when faced with an application of this kind. Orders for costs in favour of the Official Solicitor have never been based upon issues of conduct or success. On that basis, an order for half costs is a reasonable starting point for cases where the Official Solicitor is appointed to act.
This is a difficult judgment in some ways for NHS bodies, working within the current NHS climate. It is important to ensure that provision is built into budgets and planning where it is known that an application involving the Official Solicitor may be made.