North Somerset Council v LW (by her Litigation Friend, the Official Solicitor) and Others

JurisdictionEngland & Wales
JudgeThe Honourable Mr Justice Keehan,Mr Justice Keehan
Judgment Date21 May 2014
Neutral Citation[2014] EWCOP 3
CourtCourt of Protection
Docket NumberCase No: COP12495770
Date21 May 2014

[2014] EWCOP 3

COURT OF PROTECTION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Keehan

Case No: COP12495770

Between:
North Somerset Council
Claimant
and
(1) LW (By her Litigation Friend, the Official Solicitor)
(2) University Hospitals Trust Bristol NHS Foundation Trust
(3) North Bristol NHS Trust
(4) Avon and Wiltshire Mental Health Partnership NHS Trust
Defendant

Claire Wills-Goldingham QC (instructed by North Somerset Council) for the Local Authority

Conrad Hallin (instructed by the Official Solicitor) for the First Respondent

Caroline Hallisey (instructed by University Hospitals Trust Bristol NHS Foundation Trust, North Bristol NHS Trust and Avon and Wiltshire Mental Health Partnership NHS Trust) for the Second, Third and Fourth Respondents

Hearing dates: 15 th, 16 th and 23 rd April 2014

The Honourable Mr Justice Keehan

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Mr Justice Keehan

Introduction

1

This matter concerns a young woman, LW, who is 24 years of age. She is diagnosed with a condition known as hebephrenic schizophrenia. It has had and has a severe adverse impact on her day to day life. Her compliance with taking her prescribed medication to alleviate the affects of her condition is variable.

2

When this case first came before this court on 11 April 2014 LW was in the late stages of pregnancy. Baker J gave directions on North Somerset Council's application for permission under the inherent jurisdiction of the High Court not to disclose the care plan for the unborn child to the mother, namely removal into care at birth.

3

An issue arose as to whether an application should be made in the Court of Protection to permit the hospital, at which she was due to give birth to perform a caesarean section if it were established she lacked capacity to consent to medical treatment.

4

Accordingly Baker J directed that the University Hospitals Bristol NHS foundation Trust should attend the hearing listed before me on 15 and 16 April.

5

On 15 April 2014 I dealt with the local authority's application for an order under the inherent jurisdiction and for a reporting restriction order. The balance of the hearing on 15 April and then on 16 and 23 April was concerned with the Court of Protection application.

6

For reasons I shall deal with shortly, at the hearing on 23 April it was eventually agreed by the local authority, the Official Solicitor, as litigation friend for LW, and the three hospital trusts that LW did not lack capacity to consent to medical treatment, including an elective caesarean section. I, therefore, made no order on the Court of Protection application.

7

On 1 May the mother gave birth by an elective caesarean section ('CS').

8

At the conclusion of the hearing on 23 April an issue about costs arose. I directed the parties to file written submissions. The Official Solicitor and the local authority both seek an order for costs against one or more of the hospital trusts.

9

This judgment should be read with the judgment I gave in the matter NSC v LW and EW (By her Children's Guardian) [2014] EWHC 1670 and in particular paragraphs 13 to 20 where I set out the background. I do not propose to set out the background further in this judgment, save where there are additional matters which are relevant to the issue of costs.

Law

10

The jurisdiction in respect of costs in the Court Protection is set out in ss 55 and 56 of the Mental Capacity Act 2005, Part 19 of the Court of Protection Rules 2007 and Part 44 of the Civil Procedure Rules 1998.

Mental Capacity Act 2005 ss 55 and 56

55 Costs

(1) Subject to Court of Protection Rules, the costs of and incidental to all proceedings in the court are in its discretion.

(2) The rules may in particular make provision for regulating matters relating to the costs of those proceedings, including prescribing scales of costs to be paid to legal or other representatives.

(3) The court has full power to determine by whom and to what extent the costs are to be paid.

(4) The court may, in any proceedings—

(a) disallow, or

(b) order the legal or other representatives concerned to meet,

the whole of any wasted costs or such part of them as may be determined in accordance with the rules.

(5)"Legal or other representative", in relation to a party to proceedings, means any person exercising a right of audience or right to conduct litigation on his behalf.

(6)"Wasted costs" means any costs incurred by a party—

(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or

(b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.

56 Fees and costs: supplementary

(1) Court of Protection Rules may make provision—

(a) as to the way in which, and funds from which, fees and costs are to be paid;

(b) for charging fees and costs upon the estate of the person to whom the proceedings relate;

(c) for the payment of fees and costs within a specified time of the death of the person to whom the proceedings relate or the conclusion of the proceedings.

(2) A charge on the estate of a person created by virtue of subsection (1)(b) does not cause any interest of the person in any property to fail or determine or to be prevented from recommencing.

Court of Protection Rules 2007 Part 19 rr 156–160

Property and affairs – the general rule

156. 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.

Personal welfare – the general rule

157. 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.

Apportioning costs – the general rule

158. 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.

Departing from the general rule

159.—(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.

(3) Without prejudice to rules 156 to 158 and the foregoing provisions of this rule, the court may permit a party to recover their fixed costs in accordance with the relevant practice direction.

Rules about costs in the Civil Procedure Rules to apply

160.—(1) Subject to the provisions of these Rules, Parts 44, 47 and 48 of the Civil Procedure Rules 1998 ("the 1998 Rules") shall apply with the modifications in this rule and such other modifications as may be appropriate, to costs incurred in relation to proceedings under these Rules as they apply to costs incurred in relation to proceedings in the High Court.

(2) The provisions of Part 47 of the 1998 Rules shall apply with the modifications in this rule and such other modifications as may be appropriate, to a detailed assessment of the remuneration of a deputy under these Rules as they apply to a detailed assessment of costs in proceedings to which the 1998 Rules apply.

(3) Where the definitions in Part 43 (referred to in Parts 44, 47 and 48) of the 1998 Rules are different from the definitions in rule 155 of these Rules, the latter shall prevail.

(4) Rules 44.1, 44.3(1) to (5), 44.6, 44.7, 44.9, 44.10, 44.11. 44.12 and 44.12A of the 1998 Rules do not apply.

(5) In rule 44.17 of the 1998 Rules, the references to Parts 45 and 46 do not apply.

(6) In rule 47.3(1)(c) of the 1998 Rules, the words "unless the costs are being assessed under rule 48.5 (costs where money is payable to a child or a patient)" are removed.

(7) In rule 47.3(2) of the 1998 Rules, the words "or a district judge" are removed.

(8) Rule 47.4(3) and (4) of the 1998 Rules do not apply.

(9) Rules 47.9(4), 47.10 and 47.11 of the 1998 Rules do not apply where the costs are to be paid by P or charged to his estate.

(10) Rules 48.2, 48.3, 48.6A, and 48.10 of the 1998 Rules do not apply.

(11) Rule 48.1(1) of the 1998 Rules is removed and is replaced by the following: "This paragraph applies where a person applies for an order for specific disclosure before the commencement of proceedings".

Civil Procedure Rules 1998 Part 44

Court's discretion as to costs

44.2

(1) The court has discretion as to –

(a) whether costs are payable by one party to another;

(b) the amount of those costs; and

(c) when they are to be...

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2 cases
  • Re A-F (Children)
    • United Kingdom
    • Family Division
    • 31 January 2018
    ...(as in the Re X cases: In re X and Ors (Court of Protection: deprivation of liberty) (nos 1 and 2) Practice Note[2014] EWCOP 25 and [2014] EWCOP 3, Re X and Ors (Court of Protection: deprivation of liberty) (nos 1 and 2) [2015] EWCA Civ 599) was not lawful, though in appropriate circumstanc......
  • North Somerset Council v LW and Others
    • United Kingdom
    • Family Division
    • 21 May 2014
    ...day. 24 The hearing of the Court of Protection and its outcome is the subject of a separate judgment namely NSC v LW, UHBT, NBT and AWP [2014] EWCOP 3. Suffice to say that ultimately the mother was found to have capacity to consent to medical treatment including a CS. Therefore no order was......

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