Embarking on any Court action is likely to be very costly, and it is quite understandable that when committing to the expense of litigation, people will want to know how likely it is that they will recover their legal costs. In the Court of Protection, there are specific rules that govern costs recovery and these differ from most other civil Courts in England and Wales.
In the County and High Courts, in which most civil claims are dealt with, the Civil Procedure Rules 1998 (CPR) apply. Subject to a number of very detailed rules (mostly in part 44 of the CPR), the general rule for most civil claims is that the successful party will have their costs paid by the other side. This order is only usually made at the final hearing following judgment, and the amount of legal costs the successful party will recover will either be agreed upon by negotiation, or will be determined following a process of assessment (which involves the Court allowing and disallowing certain aspects of the work done, and sometimes applying guideline rates if appropriate).
The Court of Protection, however, is a different kettle of fish. The Court of Protection operates via its own rules, namely the Court of Protection Rules 2017. Rule 19 contains the key costs provisions, and the accompanying practice direction sets out the way in which cost claims would ordinarily be dealt with by the Court. The CPR does not apply automatically, although, in certain circumstances, various provisions from the CPR can be implemented.
Essentially, these are the key aspects of the way in which costs are dealt with in the Court of Protection:
- In proceedings which concern the property and financial affairs of a protected party, the legal costs of the parties will usually be met from the protected party’s resources, subject to assessment;
- In health and welfare proceedings, all parties are usually expected to pay their own costs, and there is no automatic recovery from any other party, including from the protected party;
- The Court has discretion in all cases to allow/disallow costs recovery if the circumstances are exceptional or if the behaviour of one or more of the parties merits an alternative order.
All costs are assessed by the Senior Courts Costs Office (SCCO) and SCCO assessments can take a while to complete. The SCCO process involves producing a detailed bill – often completed by costs draftsmen – which is submitted and then reviewed by a Judge. Sometimes the bill will be approved, but subject to standard hourly rates, and sometimes the Judge will query aspects of it, and ask for a revision. The process can take quite a long time.
As stated above, the Court can order one party to pay the others’ costs if the circumstances merit it. One example of this in a property and financial affairs dispute came in PP [2017] EWCOP 29. Proceedings were issued by the Office of the Public Guardian (OPG) seeking the removal of two attorneys who had acted irresponsibly and fraudulently. The general rule would have been for all parties to have their costs paid from the protected party’s resources but due to the bad conduct of the attorneys, the Court ordered them to pay the costs of the OPG.
In health and welfare disputes, one party may recover costs from the other if the Court considers that the other party has behaved particularly unreasonably. As an example, in London Borough of Harrow v AT & Anor [2017] EWCOP 37 the local authority was ordered to pay the costs of the protected party’s representatives because the protected party had been unnecessarily detained at the local authority’s request, and the protected party’s representatives had to incur a significant amount of work to ensure the protected party’s release.
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