The NHS Trust v D (by his litigation friend, the Official Solicitor)

JurisdictionEngland & Wales
CourtCourt of Protection
JudgeMr Justice Peter Jackson
Judgment Date17 April 2011
Neutral Citation[2012] EWCOP 886
Date17 April 2011
Docket NumberCOP No. 12084253

[2012] EWCOP 886

IN THE COURT OF PROTECTION

IN THE MATTER OF THE MENTAL CAPACITY ACT

Before:

The Honourable Mr Justice Peter Jackson

COP No. 12084253

Between:
The NHS Trust
Applicant
and
D (by his litigation friend, the Official Solicitor)
Respondent

Victoria Butler-Cole (instructed by Hill Dickinson) for the NHS Trust

Christopher Johnston QC (instructed by the Official Solicitor) for D

Mr Justice Peter Jackson

Introduction

1

On 23 March 2012, in these Court of Protection proceedings, declarations were made authorising the withdrawal of medical treatment from D, who had been in a permanent vegetative state since July 2011. The applicant was the NHS Trust who were treating D and the declarations were supported by all those concerned for his welfare. The decision is to be found at [2012] EWHC 885 (COP).

2

On 26 March 2012, active medical treatment was replaced by palliative care, and D sadly died on Good Friday, 6 April 2012.

3

The Official Solicitor, who acted as D's litigation friend at the court's request, has applied for an order that the Trust should pay half of his costs. This application was opposed by the Trust, who argue that the proper outcome is for there to be no order for costs.

4

The case has been presented impeccably and neither party makes any criticism of the manner in which the other has acted. The scale of the costs is however substantial, reflecting the meticulous care with which such applications must be approached. The Trust's costs amount in round figures to £65,000 and the Official Solicitor's to £32,000, so the sum in question is £16,000 or thereabouts.

5

Nor is there anything to choose between these two publicly funded bodies in terms of need. Both are funded by Government on the basis of budgets set in a time of financial stringency.

6

The Trust is a small one. Its limited annual budget for legal expenses is already overspent. The Official Solicitor, who has a national remit, is facing similar difficulties. He already has to ration the circumstances in which he appears, though there is no suggestion that he will become unable to act in cases such as this.

The Rules

7

Decisions about costs must now be taken under the Court of Protection Rules 2007. Rules 157, 159 and 163 concern costs:

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.

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) …. [Not relevant]

Costs of the Official Solicitor

163. Any costs incurred by the Official Solicitor in relation to proceedings under these Rules or in carrying out any directions given by the court and not provided for by remuneration under rule 167 [which relates to deputies] shall be paid by such persons or out of such funds as the court may direct.

8

The Official Solicitor's application falls under r.163, the only costs rule that is specific to a particular body. The rules do not make clear whether r.163 takes applications by the Official Solicitor outside the general rule (r.157) and the exceptions (r.159), but in my view it is safer to assume that it does not.

9

Issues of conduct and success provide no basis for departure from the general rule in a case such as this. The question is whether there should be a departure on the basis of r.159(1)(c) – the role of any public body – and r.163 itself, which singles out the Official Solicitor.

Earlier decisions

10

Since the Mental Capacity Act came into force in October 2007, there has been no reported authority on the question of the Official Solicitor's costs. In contrast, over the course of the previous 25 years, there were no fewer than nine decisions and a Practice Note on the subject. It is in my view permissible to survey these materials, for the assistance that they contain: see RT v LT and Anor [2010] EWHC 1910, per Sir Nicholas Wall P.

11

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