Costs in the Court of Protection - Court of Protection Rules 2017 - Rule 19.5 - Departing from the

Costs in the Court of Protection - Court of Protection Rules 2017 - Rule 19.5 - Departing from the general rule that no order should be made for between the parties costs.

BP (by his litigation friend, the Official Solicitor) v The London Borough of Harrow [2019] EWCOP 20

In this case District Judge Sarah Ellington refused an application for costs by the Applicant.

At paragraphs 10 to 13 of the Judgement the Learned District Judge summarised the issues for determination as follows:

“For the Applicant, it is submitted that this is a case where it is appropriate to depart from the usual costs rule and to order the costs of the January hearing be paid by the Respondent because of the Respondent's consistent failure to offer a trial period at home before the start of and for the duration of the proceedings, and its decision to do so only after the January hearing had commenced.

The Applicant says the issue has been raised in correspondence and Harrow has declined to accept liability for the costs thrown away at the January hearing.

For the Respondent, it is said that this is a case where it is not appropriate to depart from the usual costs rule and that if it is, an order in the terms affixed to the Respondent's submissions is appropriate. That draft order provides that the Applicant do pay the Respondent's costs arising out of and occasioned by the Respondent's preparation of the bundle, attendance at court on 24th January 2019 and the drafting of a cost's rebuttal.

The Applicant's costs submissions are dated 1 May 2019 and I have had the benefit of reading and considering them closely. The Respondent's costs submissions are dated 14 May 2019 and I have had the benefit of reading and considering them closely.”

At paragraph 40 of the Judgement the Learned District refused to depart from the usual rule and said:

“Overall, I can see the basis on which the Applicant considers an application for costs to be justified. However, this was a finely balanced case on the Applicant's own submissions in position statements, in particular that of 15 June 2018. I bear in mind the authorities on which the parties rely, in particular the Applicant's reliance on the comments of Hooper LJ in the Court of Appeal. I note the circumstances of Manchester City Council v. G, E and F [2010] EWHC 3385 were quite different. On balance and considering the circumstances as a whole, I am not persuaded that it is appropriate to depart from the general rule on this occasion. I decide this based on the chronological position of the parties set out above and all the circumstances. The Respondent's conduct falls short, to what degree is immaterial, of the necessary test. This case does not represent a blatant disregard of the processes of the Act and the Respondent's obligation to respect BP's rights under ECHR as in the Manchester case (paraphrased slightly)”

The full Judgment provides an interesting analysis of the relevant authorities in relation to the costs issue and is available here: https://www.bailii.org/ew/cases/EWCOP/2019/20.html