A & B (Court of Protection: Delay and Costs)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peter Jackson |
| Judgment Date | 25 November 2014 |
| Neutral Citation | [2014] EWCOP 48 |
| Court | Court of Protection |
| Date | 25 November 2014 |
[2014] EWCOP 48
IN THE COURT OF PROTECTION
The Honourable Mr Justice Peter Jackson
Judgment date: 25 November 2014
Two cases that I heard on consecutive days last month illustrate the problem of delay and expense in proceedings in the Court of Protection.
Both cases concerned young men who lack the mental capacity to make decisions for themselves, but to differing degrees live semi-independently. In both cases the participants were local authorities, health providers, family members and the men themselves, with the Official Solicitor acting as their litigation friend and instructing local solicitors. In both cases, expert advice was obtained. In Case A, the young man had capital from a damages award, and the cost of his representation came out of his capital, which was of course not intended for that purpose. In Case B, the young man had no capital and the cost of his representation was met by the legal aid fund.
I will not name the parties or their representatives as the cases are unfortunately not unique. Each case had its difficulties, but neither was exceptional of its kind.
In Case A, the proceedings lasted for 18 months. In round figures, the estimated legal costs were £140,000, of which about £60,000 fell on the local authority, £11,000 on a legally-aided family member, and £69,000 on the young man himself, paid from his damages.
In Case B, the proceedings lasted for five years. In round figures, the estimated legal costs were £530,000, of which about £169,000 fell on the local authority, £110,000 on a family member (who ran out of money after three years and represented himself thereafter), and £250,000 on the young man himself, paid for out of legal aid.
These figures are conservative estimates.
Each case therefore generated legal costs at a rate of approximately £9,000 per month.
It would be superfluous to give further detail about the extravagance of the proceedings in order to conclude that the objective contained in the Court of Protection Rules 2007 was not remotely achieved in either case.
Rules 3–5 read:
The overriding objective
3.—(1) These Rules have the overriding objective of enabling the court to deal with a case justly, having regard to the principles contained in the Act.
(2) The court will seek to give effect to the overriding objective when it—
(a) exercises any power under these Rules; or
(b) interprets any rule or practice direction.
(3) Dealing with a case justly includes, so far as is practicable—
(a) ensuring that it is dealt with expeditiously and fairly;
(b) ensuring that P's interests and position are properly considered;
(c) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(d) ensuring that the parties are on an equal footing;
(e) saving expense; and
(f) allotting to it an appropriate share of the court's resources, while taking account of the need to allot resources to other cases.
The duty of the parties
4. The parties are required to help the court to further the overriding objective.
Court's duty to manage cases
5.—(1) The court will further the overriding objective by actively managing cases.
(2) Active case management includes—
(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
(b) identifying at an early stage—
(i) the issues; and
(ii) who should be a party to the proceedings;
(c) deciding promptly—
(i) which issues need a full investigation and hearing and which do not; and
(ii) the procedure to be followed in the case;
(d) deciding the order in which issues are to be resolved;
(e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate;
(f) fixing timetables or otherwise controlling the progress of the case;
(g) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(h) dealing with as many aspects of the case as the court can on the same occasion;
(i) dealing with the case without the parties needing to attend at court;
(j) making use of technology; and
(k) giving directions to ensure that the case proceeds quickly and efficiently.
Few if any of the Rule 5 case management strategies were exhibited in these proceedings. There were too many hearings before too many judges 1, too much
documentation, and too many lengthy adjournments with excessive time estimates for hearings.In these cases, the consequence of delay has been protracted stress – described by one parent as "the human misery" – for the young men and their families, with years being lost while solutions were sought. There is also the drain on the time and energy of social work and medical...
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MN (Adult)
...the judgments of Parker J in NCC v PB and TB [2014] EWCOP 14, [2015] COPLR 118, paras 126–148, and of Peter Jackson J in A & B (Court of Protection: Delay and Costs) [2014] EWCOP 48, [2015] COPLR 1. A & B related to two cases. In one case the proceedings in the Court of Protection had laste......
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TB and SP v KJP and Another
...in Court of Protection proceedings and, in my opinion, he was right to do so. 57 In A and B (Court of Protection: Delay and Costs) [2014] EWCOP 48, [2015] COPLR 1, Mr Justice Peter Jackson found that the overriding objective in the Court of Protection Rules 2007 had not been remotely achiev......
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London Borough of Hillingdon v PS (First Respondent) CS (Second Respondent)
...complexity of and the number of hearings in cases (see for example, Peter Jackson J in CasesA and B (Court of Protection Delay and Costs) 2014 EWCOP 48 and Roderick Wood J in ( A Local Authority v ED 2013 EWHC 3069 COP). 45 It seems to me, however, that with proper case management and judic......