Re G (Adult) (Costs)  EWCOP 5
CoP jurisdiction and powers – costs
We have covered the previous episodes in this rather depressing story in earlier issues of our newsletter. In very summary form, the London Borough of Redbridge sought to take steps to investigate and obtain relief to protect an elderly lady, G. The web in which G described herself as being caught in then extended from her carer and her carer’s husband to include the press, Associated Newspapers Limited (‘ANL’) the publisher of the Daily Mail) seeking to be joined to the proceedings. That application was dismissed by the President on 1 May 2014  EWCOP 1361, the President describing the application (para 47) as “misconceived” and that in relation to one suggested basis of participation saying that ANL would be (para 54) “a mere interloper, an officious busybody seeking to intrude in matters that are of no proper concern to it, seemingly on the basis that it can argue someone else’s case better or more effectively than they can themselves.”
Both the local authority and the Official Solicitor, as G’s litigation friend, sought an order that ANL pay their costs of the application. Inclusive of VAT, the local authority claimed costs in the sum of £13,242. The Official Solicitor did not quantify his costs. ANL resisted both applications and said that there should be no order as to costs. The applications were made and determined on the papers.
A preliminary question for determination was whether the application was governed by the ordinary costs rules in the COP which – in the case of welfare applications – is COPR r. 157 (i.e. the general rule being no as to costs) or whether it was regulated, pursuant to COPR r. 9 by CPR r. 44.3(2), (4) and (5) – i.e. that the unsuccessful party will be ordered to pay the costs of the successful party. As the President noted at para 5, “in each case (see CoPR 2007 rule 159 and CPR 1998 rule 44.3(2)(b) respectively) the court ‘may’ make a different order, having regard to all the circumstances, including in the one case those referred to in rule 159 and in the other those referred to in the very similarly expressed rules 44.3(4) and (5). So the essential difference is in the ‘starting point’ or ‘default position’.
The Official Solicitor submitted that rule 157 applies only to “that part of the proceedings” that concerned G’s personal welfare; that ANL’s application for joinder was not one to which sections 1(5) and 4 of the Mental Capacity Act 2005 applied (see by way of analogy Re AB  EWCOP B39, para 63, and, to the same effect, Re PO, JO v GO and others  EWCOP 3932, para 34) and therefore did not concern G’s welfare; and that accordingly the question of costs is regulated not by CoPR 2007 but by CPR 1998.
ANL submitted that the purpose of ANL’s application was to enable it to engage in the process of determining issues concerning G’s personal welfare – relating to her contacts with ANL journalists – and that the “proceedings”, as that word is used in rule 157, plainly did concern G’s personal welfare.
The President agreed with ANL, holding that:
“9. The overall scheme of rules 156-157 is, first, the drawing of a distinction between proceedings which “concern P’s property and affairs” and those which “concern P’s personal welfare” and, secondly, the principle that, where the proceedings concern both, the costs should be apportioned between “that part of the proceedings that concerns” the one and “that part of the proceedings that concerns” the other. It is for this reason, and not as suggested by Mr Patel, that rule 157 contains the words upon which he relies. The key word in each of rules 156, 157 and 158 is “proceedings” and not, it may be noted, some other word, for example, “application”. The use of the word “proceedings” invites two questions: What are the proceedings? Do they concern property and affairs or personal welfare? In the present case there can only be one answer: the “proceedings” concern G’s personal welfare. The fact that G’s best interests are not determinative of this particular application does not bear on the fact that the application was, as Mr Wolanski correctly submits, an application made in personal welfare proceedings and made for the purpose of enabling ANL to participate in personal welfare proceedings.”
The President therefore held that the application fell to be determined in accordance with COPR r 157 and 159.
Turning to the determination of the application itself, Sir James Munby P endorsed the approach adopted in AH and others v Hertfordshire Partnership NHS Foundation Trust and others  EWCOP 3524, paras 11-12, where Peter Jackson J said:
“Where there is a general rule from which the court can depart where the circumstances justify, it adds nothing to say that a case must be exceptional or atypical for costs to be ordered … Each application for costs must be considered on its own merit or lack of merit with the clear appreciation that there must be a good reason before the court will contemplate departure from the general rule.”
The President was:
“18. […] troubled by the suggestion that ANL’s conduct during the proceedings should be visited in an adverse costs order, as also by the contention (even if factually accurate) that ANL’s application was self-serving and mounted for its own gain. This might be thought to reflect a mindset, also exemplified by the letters referred to above, which fails to recognise the vitally important role of the media and the valuable service the media provides, however uncomfortable this may sometimes feel to those steeped in the traditional cultures of the Family Court and the Court of Protection, in shining much-needed light on the workings of these necessarily powerful tribunals. Let it be assumed for the sake of argument – I make no findings on the point – that ANL’s reporting of the proceedings merited every word of Cobb J’s criticisms. What has that got to do with the question of costs with which I am alone concerned? With all respect to those who may think otherwise, nothing at all. Orders for costs are not to be made as a back-door method of punishing inaccurate or even tendentious reporting. The very suggestion is deeply unprincipled. Were the idea to gain acceptance it would inevitably have a chilling effect. At present, and for reasons which require no elaboration here, the Family Court and the Court of Protection need more transparency, more scrutiny by the media, more reporting – all vital if there is to be more public awareness and understanding – not less.”
“19. Stripped of all rhetoric, the essential point here is very simple: it is that ANL made an application, to be joined in proceedings in which it had no legally recognised interest, which was seemingly unprecedented (para 52 of my previous judgment), which was, as I said, misconceived and which failed completely. The question at the end of the day is whether in all the circumstances, and having regard in particular to the matters referred to in CoPR 2007 rule 159, it is right to depart from the general rule in rule 157. In my judgment it is, given the way in which I have characterised ANL’s application and the reasons why it failed. But that does not mean that ANL should necessarily have to pay all the costs, and I have concluded that that would be to go too far. There are, in my judgment, three factors which, taken in combination, justify this conclusion: first, the public importance of the issues; secondly, the stance adopted beforehand in particular by the Official Solicitor; and, thirdly, the fact that I do not see why ANL should be required to pay two sets of costs. Doing the best I can, and readily acknowledging that any figure is to an extent arbitrary, my conclusion is that ANL should be ordered to pay 30% of the costs of the local authority and 30% of the costs of the Official Solicitor (including his costs of instructing two counsel). The costs, if they cannot be agreed, will have to be the subject of detailed assessment.
20. In concluding I wish to make one thing absolutely clear. The essential factor driving the order for costs I have made in this case was, in addition to the fact it failed, the nature of the application, namely an application to be joined as a party. It should not be assumed that the same approach would have been appropriate if the dispute had been, as it usually is in cases involving the media, a dispute as to the need for or the ambit of a reporting restriction order. Very different considerations arise in such cases. Conventionally, there is often no order for costs, whatever the outcome. Nothing I have said here is intended to have any application in such cases.”
The decision on the preliminary point is of particular interest for confirming the wide definition to be given to the definition of “personal welfare proceedings” for purposes of COPR r 157 (the same will apply by analogy to COPR r 156 in relation to property and affairs proceedings). An interesting question that will fall for resolution in an appropriate case is whether the provisions of the CPR can and should be imported in a case where an HRA damages claim has been brought within the scope of COP proceedings. It is not obvious that the ratio of the decision in this case would also apply to prevent – in a proper case – that CPR r.44 should be applied (by COPR r9) so as to provide that the costs of that claim should follow the event.
It is unsurprising, perhaps, that the President should place such emphasis upon the specific reasons that he gave for making a partial departure from the normal costs rules so that his judgment cannot be elevated into one of more general significance in terms of media applications.