Re MM (A Patient)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 12 April 2017 |
| Neutral Citation | [2017] EWCA Civ 260 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 April 2017 |
| Docket Number | Case No: B4/2016/2837 |
[2017] EWCA Civ 260
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
Mr Justice NEWTON
Mr Justice BAKER
[2016] EWCOP 45
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: B4/2016/2837
Case No: B4/2016/4035
Applications dealt with on paper
Sir James Munby President of the Family Division:
This matter has twice been before the Court of Appeal. On the first occasion, on 8 November 2016 (Sir James Munby P, Black and McFarlane LJJ), we allowed Mrs Kirk's appeal against the committal order made by Newton J on 18 August 2016 and gave her permission to appeal against the welfare order previously made by Baker J on 20 June 2016: Devon County Council v Kirk [2016] EWCA Civ 1221. On the second occasion, on 26 January 2017 (Sir James Munby P), I approved a consent order allowing her appeal against Baker J's order: Re MM, Kirk v Devon County Council [2017] EWCA Civ 34. I dealt with the matter on paper and without an oral hearing. I have now to deal with the costs of the appeals.
By an order dated 8 November 2016 we directed that Mrs Kirk's application for an order for costs against Devon County Council "is reserved and shall be resolved by the court on receipt of written submissions to be filed in accordance with" a specified timetable. By a further order dated 5 December 2016 we directed that Mrs Kirk's application for "the costs of the committal appeal is adjourned for oral hearing on the occasion of the hearing of the welfare appeal." In the event there was no oral hearing. In relation to costs, the order I made by consent on 26 January 2017 provided as follows:
"2. The issue of the costs of the appeal as between [Mrs Kirk] and [Devon County Council] against the order of Baker J dated 20 June 2016 shall be determined as to any liability for such costs on the basis of written submissions which should be filed and served as follows …
3. Any liability for costs assessed by the court under paragraph 2 above shall be the subject of either agreement, or in the absence of agreement, detailed assessment as to quantum.
4. The application for costs made by [Mrs Kirk] against [Devon County Council] which relates to the appeal against the committal order made on 18 August 2016 which appeal was determined by the Court of Appeal at the hearing on 8 November 2016 shall be determined on the basis of the written submissions which [they] have already filed and any finding as to liability shall be the subject of agreement, or in the absence of an agreement, a detailed assessment as to quantum.
5. Subject to the applications to be determined under the arrangements set out in this order there shall be no orders as to costs in relation to the appeal against the order dated 20 June 2016 and there shall be a detailed assessment of the costs of [MM]."
It follows that it now falls to me to determine liability for the costs of both the committal appeal and the welfare appeal.
Mrs Kirk seeks orders in relation to both appeals against Devon County Council, essentially on the ground that she was, as she would have it, wholly successful in both appeals and that Devon County Council, the effective respondent and the party which had been responsible for obtaining both the welfare order made by Baker J and the committal order made by Newton J, should bear the normal consequences of defeat, not least given its active opposition to both appeals when the matter was before us on 8 November 2016. (She does not seek any order against either MM or the Official Solicitor.)
In relation to these applications, I have received written submissions from Mr Colin Challenger on behalf of Mrs Kirk dated 14 November 2016, 30 November 2016, 21 December 2016, 11 January 2017 and 31 January 2017, from Ms Louise MacLynn on behalf of Devon County Council dated 23 November 2016 and from Mr Andrew Bagchi QC also on behalf of Devon County Council dated 14 February 2017.
In relation to the costs of the appeal against the committal order, Mr Challenger submits that the fact that the appeal against the committal order was allowed on one ground, without the court feeling it necessary to address the others, is no reason Mrs Kirk should not recover all her costs. Moreover, he says, these costs should be ordered on an indemnity basis.
Ms MacLynn submits that there should be no order. She draws attention to the undoubted fact that, initially, Mr Challenger was acting pro bono, so that costs would not be...
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