G (Adult)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 10 June 2014 |
| Neutral Citation | [2014] EWCOP 5 |
| Date | 10 June 2014 |
| Court | Court of Protection |
| Docket Number | Case No: 12455450 |
[2014] EWCOP 5
COURT OF PROTECTION
(In Open Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE COURT OF PROTECTION
Case No: 12455450
Ms Laura Davidson (instructed by Simon Goodwin, Borough Solicitor and Secretary) for the local authority
Mr Parishil Patel (instructed by Bindmans LLP) for G
Mr Adam Wolanski (instructed by Penningtons Manches LLP) for Associated Newspapers Limited
No hearing: application dealt with on written submissions
Sir James Munby, President of the Court of Protection:
I gave judgment in this matter on 1 May 2014, explaining why I was dismissing an application dated 8 April 2014 made by Associated Newspapers Limited (ANL), publishers of the Daily Mail, seeking inter alia to be joined as a party to the proceedings: Re G (Adult), London Borough of Redbridge v G and others (Associated Newspapers Limited, interested party) [2014] EWCOP 1361. There is no need for me to repeat what is in that judgment except to note that I described the application (para 47) as "misconceived" and that in relation to one suggested basis of participation I said 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." Nor is there any need for me to rehearse what Cobb J had said in his earlier judgment: The London Borough of Redbridge v G and others [2014] EWCOP 959.
The order I made gave the parties permission to make written submissions on costs. I accordingly have before me applications by both the local authority and the Official Solicitor, as G's litigation friend, seeking an order that ANL pay their costs of the application. Inclusive of VAT, the local authority claims costs in the sum of £13,242. The Official Solicitor has not quantified his costs. ANL resists both applications and says that there should be no order as to costs.
With the agreement of the parties I have dealt with the matter without a hearing, on the basis of the written submissions prepared by Ms Laura Davidson on behalf of the local authority, Mr Parishil Patel on behalf of G and Mr Adam Wolanski on behalf of ANL.
Ms Davidson assumes and Mr Wolanski asserts that the application before me is governed by CoPR 2007 rules 157 and 159. Mr Patel disputes this. He submits that the question of costs is regulated, pursuant to CoPR 2007 rule 9, by CPR 1998 rules 44.3(2), (4) and (5).
The difference, of course, and the reason for the controversy is that whereas under CoPR 2007 rule 157 "the general rule is that there will be no order as to the costs", under CPR 1998 rule 44.3(2)(a) "the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party." 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'.
It is convenient before going further to set out the relevant provisions of CoPR 2007:
"156 Property and affairs – the general rule
Where the proceedings concern P's property and affairs the general rule is that the costs of the proceedings or of that part of the proceedings that concerns P's property and affairs, shall be paid by P or charged to his estate.
157 Personal welfare – the general rule
Where the proceedings concern P's personal welfare the general rule is that there will be no order as to the costs of the proceedings or of that part of the proceedings that concerns P's personal welfare.
158 Apportioning costs – the general rule
Where the proceedings concern both property and affairs and personal welfare the court, insofar as practicable, will apportion the costs as between the respective issues.
159 Departing from the general rule
(1) The court may depart from rules 156 to 158 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances, including –
(a) the conduct of the parties;
(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(c) the role of any public body involved in the proceedings.
(2) The conduct of the parties includes –
(a) conduct before, as well as during, the proceedings;
(b) whether it was reasonable for a party to raise, pursue or contest a particular issue;
(c) the manner in which a party has made or responded to an application or a particular issue; and
(d) whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response."
Mr Patel submits 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 [2013] EWCOP B39, para 63, and, to the same effect, Re PO, JO v GO and others [2013] 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.
Mr Wolanski, to the contrary, submits 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.
I agree with Mr Wolanski. 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...
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