Court Of Protection – Official Solicitor Applies For Costs Order Against NHS

Cases in the Court of Protection differ from those in the usual civil courts in a number of ways. In relation to the issue of costs, in civil courts the winner can normally expect to recover costs from the loser, but the Court of Protection Rules 2017 are very different in this respect.

The general rule is that when the proceedings concern the property and financial affairs of the Protected Party (P), legal costs shall be borne by the Protected Party’s assets unless the circumstances warrant another party being held responsible. For matters concerning the Protected Party’s health and welfare, the parties are unable to recover costs unless the Court feels the circumstances deem this necessary, usually as a result of one party’s wrongdoing having caused the proceedings, or a party adopting a significantly unreasonable approach during the litigation.

Any person wishing to bring proceedings in the Court of Protection should be aware of the costs implications in the rules as representation in proceedings can become very expensive, especially where health and welfare matters are concerned as the Court are reluctant to order recovery of costs. The Protected Party – the person at the centre of the proceedings, will be represented in health and welfare cases (and sometimes in property and affairs cases) by a litigation friend, the Official Solicitor. The Official Solicitor in turn will sometimes instruct solicitors and this leads to the Protected Party’s resources being spent on legal costs.

The Court of Protection usually makes an order in health and welfare claims that all parties pay their own costs and can be reluctant to depart from that rule. The Court’s reluctance was recently seen in the case of West Hertfordshire Hospitals NHS Trust v AX (by her litigation friend, the Official Solicitor) where the Official Solicitor applied for the Protected Party’s costs on the basis that the application made by the NHS was unnecessary.

West Hertfordshire Hospitals NHS Trust v AX (by her litigation friend, the Official Solicitor)

Background

This case involved an emergency application being made by the NHS which sought an order allowing a Caesarean section for the Protected Party (AX) as this was believed to be in AX’s best interests.

The application was made more than three weeks before AX’s due date as there were concerns AX may lack the capacity to make that decision leading up to the birth. The application was initially heard and adjourned so further evidence could be obtained and during that time the NHS was able to confirm AX had the capacity to make the decision herself, so it withdrew the application. The NHS agreed to cover 50% of the Official Solicitor’s costs and the Official Solicitor applied to recover the remaining 50%.

The Official Solicitor’s position was that the application was not urgent or even necessary given that AX had the capacity to decide for herself, and the evidence provided in support of it was unsatisfactory. Had the NHS taken a more careful approach, it argued, the proceedings might not have happened at all. The Judge believed that the NHS presented its case the wrong way and said it would have been better to make an application for directions, which may have led to an urgent hearing, but this would still have provided enough time for the capacity expert to meet with AX and assess her properly, as per guidance set out in a previous case.

Despite not following that guidance it was felt costs should not be ordered against the NHS as the breach was not “significant enough” to warrant this. The judge also noted that as the application was withdrawn, with no order as to costs, the Judge was unable to re-open proceedings. The judge commented that AX had also made significant improvements as a result of her medication, therefore changing the position between the application being made and the hearing, and for this reason, the NHS’s rather hasty application was slightly more understandable. This decision shows the Court’s reluctance to award costs in the Court of Protection but the circumstances also suggest some form of application may have been necessary to at least consider.

Even when a party is awarded costs that party should be aware that costs in the Court of Protection are subject to assessment by the Senior Courts Costs Office (SCCO) where costs will be reviewed and only those reasonably incurred shall be recoverable.