COP jurisdiction and powers - Costs

Summary

With thanks to Sam Karim of Kings Chambers for bringing this to our attention, this costs decision relates to the case of Re C [2011] EWHC 1539 (Admin), which readers may recall involved the use of a ‘blue room’ to restrain a young man who displayed challenging behaviour. The Court of Protection and judicial review proceedings resulted in the local authority admitting to have breached its community care obligations in respect of C, and declarations that C’s rights under Articles 3, 5 and 8 had been violated. Ryder J gave important guidance about the use of seclusion in residential schools.

C’s brother, who became a party to the proceedings shortly after they were instituted, sought an order that the local authority responsible for C should pay his costs. Granting C’s brother the order sought, Ryder J relied on the local authority’s misconduct, the fact that, had the local authority complied with the MCA 2005, C’s brother would not have needed to play such an extensive role in the proceedings, and the fact that C’s brother had made a useful contribution to the proceedings. Ryder J concluded that a departure from the usual rule that there be no order for costs in Court of Protection proceedings was appropriate, since:

  1. the local authority’s actions were tainted with illegality;
  2. the local authority’s decision making was impoverished and disorganised;
  3. the local authority was responsible for the delay in referring C’s circumstances to the Court of Protection and/or the High Court in its children and inherent jurisdictions;
  4. the local authority could have arrived at the position concluded by the court many months earlier.

Comment

This decision reaffirms that adverse costs orders may well be made in welfare proceedings where public bodies have failed to comply with their statutory responsibilities, even where there has been no bad faith, and that public bodies who do not accept the strength of the case against them and make appropriate concessions and apologies at an early stage cannot rely on the general rule as to costs in welfare proceedings. It can therefore be read alongside VA v Hertfordshire PCT and Others [2011] EWHC 3524 (COP) as a health warning for public authorities.