Costs in the Court of Protection are governed by a distinct statutory and procedural framework which reflects the Court’s protective, rather than adversarial, jurisdiction. In Property and Finance proceedings, the starting point is that the costs of the proceedings are ordinarily paid by the protected party or are charged to their estate. This reflects the principle that such applications are generally brought for the benefit of the person who lacks capacity and that applicants should not be deterred from making necessary applications with the risk of personal financial exposure. However, this is not an inflexible rule. The court retains a wide discretion to depart from the general position, having regard to all the circumstances of the case, including the conduct of the parties, the extent to which any party has succeeded, and the role played by public bodies. As a result, costs decisions in the Court of Protection are highly fact‑sensitive and driven by considerations of fairness and justice.
Where the person to whom the application relates to is later found to retain capacity, the matter of costs can become complex. The usual starting point that costs are paid by the protected party or their estate may fall away, exposing applicants to the risk that they will be unable to recover the costs they have incurred. This can create tension between encouraging good‑faith safeguarding applications and avoiding unfair financial burdens on individuals wrongly drawn into proceedings. An example of a costs order going against the applicant was seen in the recent case of Riddle v NA[1].
The proceedings arose from an application made in October 2022 for the appointment of a professional deputy, Mr Riddle, to manage NA’s property and financial affairs. The application followed concerns raised by the Local Authority regarding NA’s ability to manage his finances, his living conditions and the risks of his escalating debt. The Local Authority referred the matter to Mr Riddle due to a perceived potential conflict of interest, with the Local Authority considering a claim against NA for unpaid council tax. The application was supported by an initial capacity assessment indicating a lack of capacity, but was opposed by NA, who objected to the appointment of a Deputy and participated in proceedings as a litigant in person. Over the course of the proceedings, multiple hearings took place and further evidence was gathered, including a section 49 expert report on capacity. That capacity report confirmed that NA retained capacity to manage his property and financial affairs and therefore the applicant’s application to be Deputy must fail, as the Court of Protection will have no jurisdiction for those retaining capacity.
Following the failed application, the starting point in terms of costs would be for the costs to have been met by NA. This is of course subject to the Court’s discretion to depart where the circumstances require. In exercising their discretion, the Court of Protection made no order as to costs, notwithstanding the general presumption that costs are paid by the protected party or charged to their estate. This resulted in the applicant being responsible for their own legal costs in the first instance.
The applicant appealed the initial costs decision on the basis that the judge had erred in law and in the exercise of their discretion. It was argued that the Court failed to properly apply the structured framework for costs as set out in Court of Protection Rules 2017, including the general starting point is for the protected party to bear costs concerning property and finance proceedings. In the alternative, the applicant also contended that relevant factors were not given adequate weight and that the resulting decision was plainly wrong.
On appeal, the judge reconsidered the issue of costs afresh but ultimately concluded that it was appropriate to depart from the general presumption and to make no order as to costs. This was due to the following reasons:
- Outcome of the proceedings: The application for deputyship failed, with the person concerned successfully resisting the proceedings and being found to have capacity.
- Fairness and natural justice: It would be unjust for an individual, who did not invite the proceedings, consistently opposed them and ultimately succeeded, to be required to pay the applicant’s costs.
- Nature of the jurisdiction: Although property and finance cases start with a presumption that costs are paid from P’s estate, that presumption is not determinative and must not be applied mechanically.
- Litigation risk: The applicant chose to bring and pursue the application and was able to assess and bear the litigation risk before, whereas the individual concerned was a vulnerable litigant in person and required to respond on receipt.
- Lack of benefit: The individual gained little or no benefit from the proceedings and any limited advantage was outweighed by the potential financial burden of a costs order.
This case demonstrates the harsh reality that costs will not always be ordered in Court of Protection proceedings concerning a person’s property and finances. Applicants should therefore approach such applications with caution and carry out their own due diligence before, as with any litigation.
[1] [2025] EWCOP 39
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