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	England and Wales Court of Protection Decisions
You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> AH & Ors, Re (Costs) [2011] EWCOP 3524 (16 November 2011) URL: http://www.bailii.org/ew/cases/EWCOP/2011/3524.html Cite as: [2011] EWHC 3524 (COP), [2011] EWCOP 3524

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IN THE COURT OF PROTECTION

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 November 2011

Mr Justice Peter Jackson:

Introduction

1. This is an application for costs, made on behalf of the nine applicants named in the title of the action [2011] EWHC 276 (COP). They are residents at a unit known as SRS. They seek an order that the respondents pay half of their costs of these proceedings and of the preceding investigations.
2. The case of AH (Alan) was heard over four days in January 2011 and a decision was given in February 2011. Thereafter, the remaining proceedings were compromised in March 2011 on terms satisfactory to the residents.
3. All parties to the proceedings have incurred substantial costs. The residents' costs alone collectively exceed £400,000, excluding VAT. These fall on them to varying degrees by diminishing their savings to the point that they became eligible for legal aid, and thereafter on the legal aid fund.
4. For example, Alan's costs, which are higher than those of the other residents as a result of his case having been taken to a full hearing, amount to around £78,000 (£46,000 at legal aid rates), of which about £7,000 is in respect of costs incurred before the issue of proceedings in July 2010. Before he became legally aided in January 2011, he had funded approximately £18,000 of legal costs from his savings, which come from accrued benefits. His savings now amount to some £3,700.
5. The parties to each case are as follows

Residents	Commissioners	Provider
AH	Ealing PCT	Herts NHS Foundation Trust
VA	Herts PCT / Herts CC	" "
DR	Herts PCT / Herts CC	" "
SP	Herts PCT / Herts CC	" "
DS	Barnet PCT / LB Barnet	" "
SB	Barnet PCT / LB Barnet	" "
DH	Barnet PCT / LB Barnet	" "
RM	Barnet PCT / LB Barnet	" "
EN	Barnet PCT / LB Barnet	" "

6. The legal action began in January 2009 with a letter to the provider from solicitors acting on behalf of the residents. After protracted correspondence, proceedings were issued in July 2010. In Alan's case they ended with the judgment of 17 February 2011, following a four-day hearing in January. In October/November 2010, independent expert advice was obtained from a consultant psychiatrist and a social worker, both of whom strongly advised against moving Alan from SRS. The foundation trust called evidence from those responsible for Alan's current care. None of the care team (doctor, psychologist, centre manager) supported the case for a move. Only one witness of the eight who gave evidence spoke in favour of Alan moving.

The Act and the Rules

7. The primary provision on costs in the Court of Protection is s.55 Mental Capacity Act 2005, which provides as follows:

55. Costs

(1) Subject to Court of Protection Rules, the costs of and incidental to all proceedings in the court are at its discretion.

(2) The rules may in particular make provision for regulating matters relating to the costs of those proceedings, including prescribing scales of costs to be paid to legal or other representatives.

(3) The court has full power to determine by whom and to what extent the costs are to be paid.

(4) The court may, in any proceedings –

(a) disallow, or

(b) order the legal or other representatives concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with the rules.

(5) "Legal or other representative", in relation to a party to proceedings, means any person exercising a right of audience to conduct litigation on his behalf.

(6) "Wasted costs" means any costs incurred by a party -

(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or

(b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.

8. The relevant rules are Rules 157 and 159 of the Court of Protection Rules 2007, which provide:

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) Without prejudice to rules 156 to 158 and the foregoing provisions of this rule, the court may permit a party to recover their fixed costs in accordance with the relevant practice direction.

Decisions on costs

9. I have been referred to four Court of Protection decisions on costs:

SC v London Borough of Hackney [2010] EWHC B29 (COP), a decision of Senior Judge Lush

G v E & Ors [2010] EWHC 3385 (Fam), a decision of Baker J, upheld on appeal in Manchester City Council v G & Ors [2011] EWCA Civ 939

D v R (the Deputy of S) and S [2010] EWHC 3748, a decision of Henderson J in a property and affairs case.

10. I summarise these decisions in the Appendix to this judgment. Having considered them, I find that they do not purport to give any guidance over and above the words of the Rules themselves – had such guidance been needed the Court of Appeal would no doubt have given it in Manchester v G. Instead, the decisions represent useful examples of the manner in which the court has exercised its powers.
11. Where there is a general rule from which the court can depart where the circumstances justify, it adds nothing to say that a case must be exceptional or atypical for costs to be ordered.
12. I understand the respondents' wish to contrast the more egregious events in cases such as G v E with the facts of the present cases, but I do not find this approach to be of assistance in reaching a conclusion. Each application for costs must be considered on its own merit or lack of merit with the clear appreciation that there must be a good reason before the court will contemplate departure from the general rule.

Costs in cases that have been compromised

13. The leading case is R (Boxall) v Waltham Forest LBC (2001) 4 CCL Rep 258 QBD (Admin). Scott Baker J there stated, at paragraph 22:

Having considered the authorities, the principles I deduced to be applicable are as follows:

(i) the court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.

(ii) it will ordinarily be irrelevant that the Claimant is legally aided;

(iii) the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost;

(iv) at each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.

(v) in the absence of a good reason to make any other order the fall back is to make no order as to costs.

(vi) the court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage.

14. I have regard to these guidelines, seen in the light of subsequent decisions, three of which are summarised in the Appendix.

The parties' submissions

15. Detailed written submissions have been filed on behalf of (1) Alan and the other residents, (2) the provider and all the commissioners except Hertfordshire County Council, and (3) Hertfordshire County Council. I have labelled these submissions by topic.
16. On behalf of the residents it is said that these circumstances justify a departure from the general rule:

(1) Pre-action conduct

Considerable cost was incurred before proceedings were issued. The first letter was written in January 2009. Over the following 18 months, continuous pressure had to be applied in order to obtain even incomplete information about what plans were being made for the residents, as well as difficulties over the release of funds for legal advice. (The pre-action correspondence is huge, running to over 500 pages in relation to all SRS residents.) Detailed disclosure was only given following directions given within the proceedings.

(2) Burden on residents

Although the respondents were considering a move for many SRS residents, and knew that this would be controversial, they took no steps to resolve matters by placing the dispute before the Court of Protection. It was left to the residents' relatives and the Official Solicitor to take proceedings, placing responsibility for their conduct and significantly greater expense on their shoulders.

(3) Welfare assessments

The judgment in Alan's case shows that no proper process for the assessment of his best interests had been followed, breaching the requirements of the Act and the Code of Practice. The documents demonstrate that the same could be said in all cases. There was a risk that in the absence of proceedings, residents could have been moved without proper assessments having occurred.

As illustrations, the cases of DS (Barnet) and DR (Herts) show that proposals for them to move were pursued without any balancing of the welfare considerations. In both cases, the first attempt at a balanced assessment was contained in statements filed within the proceedings, by which time the decision to move had been taken.

(4) Co-ordination and communication

There was a general lack of co-ordination on the part of the public bodies, to the extent that plans were being made on the incorrect assumption that SRS was to close. This confusion made it hard to protect the interests of vulnerable residents.

(5) Outcome

Alan was wholly successful in his application. This was a situation within the control of the respondents. The initiative for change came from them and they could form an accurate view of the merits of their proposals, yet they persisted even when faced with the clearest adverse expert advice. The case is to be contrasted with an urgent case in which public bodies seek to protect an incapacitated person from harm; in such cases, the assessment of the merits may be harder.

(6) Persistence

While Hertfordshire County Council withdrew its proposal to move its three residents in February 2011, Barnet PCT maintained its plan to move its five residents up to the eve of the hearing on 21 March, further increasing the costs.

17. In response, the respondents (other than Herts CC) submit:

(1) Threshold

The court should only depart from the general rule in exceptional circumstances or where there is bad faith. Exceptional circumstances include conduct that results in the cost of proceedings being greater than it otherwise might have been or where an application is frivolous, malicious, vexatious or motivated by self-interest. Re SC and G v E (above) show that the threshold for awarding costs is a high one. Public authorities should not be penalised for getting it wrong in difficult cases.

(2) Pre-action conduct

The response of the respondents to pre-action correspondence was principled in the absence of any identified legal dispute in respect of which advice would be necessary. Pre-action disclosure would have achieved nothing and would have been extremely burdensome.

(3) Burden on residents

The complaint about failure of the public bodies to start proceedings concerns the commissioners and not the service providers. The commissioners were entitled to regard it as premature to start proceedings when assessments were ongoing.

(4) Welfare assessments

Any breach of proper procedure in Alan's case was not egregious or blatant, and did not bring any adverse consequences for his welfare. There is no evidence that other residents would have been moved without proper assessments having taken place.

(5) Co-ordination and communication

Any uncertainty about the closure of SRS had no impact on the proceedings and should not sound in costs.

(6) Outcome

Reliance on the outcome of the proceedings is not a justification for departure from the general rule. No findings were made in any case other than Alan's. In Alan's case, his parents were at one point supportive of the idea of a move. The other cases have been compromised purely for the purpose of saving costs.

(7) Persistence

Barnet was entitled to take whatever position it thought best for its residents following the judgment in Alan's case. This was not a class action with automatically transferable findings. It was not unreasonable for Barnet to have reached later agreement. It was a sensible compromise, approved by the court.

(8) Apportionment

The court cannot fairly distinguish between the respective roles of each respondent.

(9) Scale of costs

The applicants should provide a detailed breakdown of precisely how and when this 'staggering' amount of costs has been incurred.

18. Hertfordshire County Council (HCC) make these submissions:

(1) Threshold

In contrast to the Civil Procedure Rules, the starting point is no order.

(2) Pre-action conduct

The complaint about pre-action events does not concern HCC.

(3) Burden on residents

The fact that the residents took on the burden of pursuing the proceedings can at most lead to compensation for the added costs thereby borne by them, not to a general order for costs. In fact the residents never suggested that the public bodies took over conduct. Even if it is the case that the residents should not have had to start proceedings, the main responsibility for this falls on the provider, which was the decision-maker in respect of SRS, and not on HCC.

(4) Welfare assessments

There has been no determination that HCC did not have proper best interests decision-making procedures: the court should not try to determine those issues on paper.

(5) Co-ordination and communication

HCC's approach was more collaborative than the other authorities. It was surprised when the foundation trust's witnesses filed equivocal evidence on 14 January 2011.

(6) Outcome

HCC took a pragmatic decision to settle its proceedings to avoid further cost. Its professionals still hold the same views, in disagreement with the expert witnesses. It cannot be said that any of the HCC residents succeeded, their case not having been heard. It would be unfair to criticise HCC's witness for 'looking at' the possibility of an alternative placement. Different professionals may reasonably make different judgments about best interests.

HCC's individual position should be considered. It had a distinct position in relation to SRS and had a different case to put forward. Had HCC's cases been heard, it would have been critical of SRS in a way that the parties to Alan's case were not. Insofar as the residents refer to details of HCC's cases, it would be disproportionate for the court to investigate further. The cases are not 'clear and obvious' in the Boxall sense.

(7) Persistence

HCC agreed to settle the proceedings on 9 February, having received the views of the care team on 14 January. It was not unreasonable for it to wait to see the evidence of the experts and the care team before reaching a decision, and HCC did not cause extra costs to be incurred by doing so.

(8) Apportionment

An undifferentiated costs order against all respondents would be unworkable in practice. Any order must be tied to specific findings about specific respondents. Any order arising from additional cost having been incurred should be made under CPR 44.3(6) as an order relating to a particular step in the proceedings.

(9) Scale of costs

The amount of costs is substantial and a percentage-based order would be inappropriate.

(10) Warning

If a costs order is to be made, the affected party should be given notice at an appropriate point in the proceedings. HCC was not given such a warning at the time the consent orders were agreed; had it been warned it might have decided to pursue the proceedings instead of compromising them.

19. The residents' response is this:

(1) Threshold

The Rules should be applied without gloss. The proceedings were not typical when account is taken of (1) the pre-action history, (2) the proposal for a move from a facility that was obviously meeting the residents' needs, (3) the faulty decision-making processes, (4) the failure of any public body to refer the matter to court, (5) the public bodies' misapprehensions about the closure of SRS and the effect of national policy, and (6) the outcome.

(2) Pre-Action conduct

The CPR Practice Direction on Pre-Action Conduct provides at paragraph 6.1 for parties to exchange sufficient information to allow them to understand each other's position and make informed decision about settlement and how to proceed. There was no justifiable basis for responsible public bodies to withhold information from the Official Solicitor, whose role is to represent vulnerable incapacitated people, or from relatives acting on their behalf.

The foundation trust's refusal to release money to enable residents to obtain advice represented a conflict of interest and a departure from normal practice. Even when orders were made for details of the residents' level of funds to be disclosed regularly, these were not complied with. The level of disclosure sought was not onerous, amounting to about one lever arch file per resident.

(3) Burden on residents

The submission that it was premature to issue proceedings is disingenuous. In 2009 a Project Board existed to co-ordinate the resettlement of SRS residents. In some cases (Alan and DR, for example) identified placements had been found. No attempt had been made to resolve differences by negotiation with the families or with the residents' lawyers. Lastly, at a directions hearing in October 2010, the respondents pressed for early hearings to allow moves to take place. As a result, two cases (Alan and DR) were listed for hearing in January, with the others to be tried in March/April. In Alan's case, it is clear that he would have been moved but for the intervention of the court.

HCC never offered to take on the role of applicant.

(4) Welfare assessments

It is noteworthy that the respondents have not responded to the submission that decision-making in all cases was defective.

(5) Co-ordination and communication

The fact that the commissioning authorities were unaware of the views of the care team is extraordinary and demonstrates the lack of proper communication and decision-making.

(6) Outcome

The orders that were made expressly declare that it is in the residents' best interests to remain at SRS. It was not open to the respondents to say otherwise. Barnet was entitled to take whatever position it considered to be in the best interests of its residents, but not to do so at their expense.

HCC's explanation that it settled the case for pragmatic reasons does not amount to the clear explanation required by Bahta (see Appendix). The suggestion that it settled the case against its view of its residents' best interests in reliance on there being no order for costs is disturbing, considering the issues at stake for the residents.

(7) Persistence

DR's case was to be tried with Alan's, but was adjourned on the first day of the hearing because HCC revealed on that day, and not before, that there there was at that point nowhere for DR to move to. The other two HCC cases settled at a late stage, and Barnet's five cases settled on the first day of the hearing.

(8) Apportionment

All respondents were represented by Capsticks until August 2010. HCC and the other respondents were equally placed to have internal knowledge of what was going on in relation to SRS residents, and the residents should not be placed at a disadvantage because of failures by the public bodies to communicate.

If the public bodies cannot agree on division of costs among themselves, they should share liability for costs equally in each case.

(9) Scale of costs

The costs were incurred in nine cases involving over two years' work. Their extent is a reason for the court to investigate, while the detailed assessment procedure will prevent any excessive amount being payable.

(10) Warning

The decision in SC involved a litigant in person, for whom a warning about costs would have been appropriate. The public bodies here were represented by front-rank lawyers and needed no such warning. In any event, a number of warnings about costs were contained in the pre-action correspondence. When settling the case, HCC were plainly told that the question of costs would be dealt with separately.

Discussion

20. I note that this costs judgment is longer than the substantive judgment in Alan's case. In most cases, satellite litigation on this scale will be inappropriate but here it is unavoidable and proportionate to the sums involved. Fortunately, it has not been necessary to convene a hearing, and no party asked for one. As can be seen, the submissions are substantial, the documents themselves running to over 90 pages.
21. I will make some observations about the litigation generally.
22. In the first place there is no suggestion of any bad faith on the part of any of the respondents, nor of flagrant misconduct of the kind seen in G v E. This is not a case in which any application for indemnity costs could be made. Nor is there an application for the whole of the residents' costs to be met, something acknowledged by the residents in limiting their application to 50% of their costs.
23. Next, this was undoubtedly a major piece of litigation. It potentially concerned the future of about 30 residents, of whom 12 were already the subject of proceedings. The reason why the court, having heard Alan's case, did not embark on the other cases was because they were settled, and the reason that they settled was because they turned on issues that were similar to Alan's case: see paragraph 4 of my first judgment. Although there are undoubtedly differences between the situations of individual residents, the underlying basis for the litigation was common to all cases.
24. Then, the origins of the litigation lay in the plans of the commissioners to move the residents into community placements. These were voluntary acts on the part of the commissioners – they were not simply reacting to events but seeking to direct them in accordance with what they perceived to be good practice.
25. I will now consider the arguments in Alan's case, and in the other cases.

The application in Alan's case

26. The questions that must be addressed are these:

(1) Is departure from the general rule justified in all the circumstances, including the conduct of the parties, the outcome of the case and the role of the public bodies?

(2) If so, what order should be made?

27. For the reasons that follow, I consider that some departure from the general rule is justified in Alan's case.
28. Firstly, I accept that from early 2009 until the issue of proceedings, those seeking to represent Alan's interests had very great difficulty in getting reliable information about the planning being carried out by the public bodies and about the financial circumstances of the residents. No doubt this partly reflected the complexity of the overall project, but there was also an underlying reluctance to share information. This is reflected in the submission that there was no identified legal dispute and that pre-action disclosure would have achieved nothing. I reject that submission. It misstates the situation in Alan's case, where there was clearly an issue about his future, and overlooks the obligations of Practice Direction on Pre-Action Conduct, to which public bodies above all should have regard.

As a modest counterweight to this conclusion, it is true that those representing the residents might have applied to the High Court for disclosure of documents under s33(2) Senior Courts Act 1981 (assuming for the present that this could be applied to proceedings in the Court of Protection, and that there would be a reasonable likelihood that the court would disapply CPR 1998 r48.1 which provides for the disclosure to be at their expense). Alternatively, the residents could have reduced the pre-action period by bringing their proceedings earlier than they did. I do not however consider that these possibilities blunt the thrust of my main conclusion on the pre-action period.

29. Secondly, I accept that Alan's costs were increased by the fact that he took on the role of applicant. By the time proceedings were issued, Ealing and the foundation trust had a well-advanced plan to place Alan at 376 Uxbridge Road. They knew that the plan was not supported by Alan's parents and that there was general controversy about the decanting of residents from SRS. In the circumstances it was incumbent upon them to obtain legal authority for the move, but they took no such steps. I reject the argument that it would have been premature for them to have started proceedings. The project had been on foot for at least two years and in Alan's case they were positively pressing to accelerate a hearing because of the imminence of a move.
30. Thirdly, I have found that in Alan's case there was no best interests assessment worth the name: paragraph 34 of my judgment. The fact that this did not bring about adverse consequences for his welfare is no thanks to the respondents.
31. Fourthly, proper planning in Alan's case was confounded by a lack of clarity on the part of the foundation trust and of Ealing as to whether SRS was closing or not. So far as the court was concerned, it was not until the opening of the final hearing of Alan's case that it was made clear that SRS was not closing. While Ealing is not responsible for the facility, it was bound to achieve its own understanding: otherwise how could the options for Alan be properly assessed? It is also striking that Ealing was unaware of the views of Alan's care team until January 2011, a state of affairs that could only arise as a result of a lack of effective consultation and communication.
32. Fifthly, it is correct to say that the application that was made on Alan's behalf was wholly successful. Costs do not follow the event in these proceedings, but in this case the evidence as a whole pointed strongly to the eventual result. In the first place, Ealing's application gained no support whatever from its own assessments of his needs: see paragraph 33 of my first judgment. Next, as stated above, there was no balanced welfare assessment before the plan to move Alan emerged. Then, when the jointly instructed experts' reports were received in early October, they advised in the clearest terms that a move was not in Alan's interests. This led to no visible change in the public bodies' positions and the litigation continued.
33. The public bodies were entitled to a view of their own, but I do not consider their response to this body of evidence to have been reasonable. The fact that their thinking was inspired by a national policy did not entitle them to apply it indiscriminately. It was not reasonable to await the filing of the care team's evidence in January, when their views should have been sought and understood before a move was even contemplated. And even then, there was no change to the plan for Alan, whose costs continued to mount until judgment was given.
34. The rules require me to have regard to the position of public bodies. Overall, I regret to say that the approach of Ealing and the foundation trust to the issues presented in Alan's case was hamstrung by (1) the lack of any solid welfare foundation for the proposed move, and (2) a failure to confront and acknowledge the compelling evidence presented by experts in whose instruction they had participated, let alone the evidence of the care team.
35. The public bodies were entitled to take the matter to a hearing, enabling them to put questions to the experts and to call Ms Batt, but the overall circumstances satisfy me that in doing so they placed themselves at risk of costs.
36. The public bodies have not argued that they took Alan's case to trial with a view to getting a guide to the likely outcome in the other cases, perhaps because they do not wish to acknowledge that his was a bellwether case. I nevertheless have some sympathy for their wishing to obtain a steer from the court. That element is properly reflected in the fact that an order for half costs only is being sought.
37. I would add that, it is rightly not suggested in Alan's case that the absence of a warning stands in the way of a costs order. Warnings may well be appropriate for private litigants, particularly those acting in person, but are not to be seen as preconditions for costs applications in cases involving public bodies, who can be taken to know the risks of litigation.
38. As to the amount of costs, I inevitably apply a broad brush. Taking account of all the factors and the overall context, I conclude that the application made on behalf of Alan succeeds to the extent that he shall recover half of his costs from the date on which proceedings were issued, namely 14 July 2010, until their conclusion on 17 February 2011. In reaching that conclusion I take account of the respondents' pre-action conduct but consider that Alan is adequately compensated by an order taking effect from the date on which proceedings began.
39. As to apportionment, the foundation trust might have argued that the litigation was promoted by the commissioners, but it has not done so. The public bodies were represented by the same legal team and presented a joint case. I have been given no basis for discriminating between Ealing and the foundation trust in terms of responsibility for costs.
40. I shall therefore order that Hertfordshire Partnership NHS Foundation Trust and Ealing Primary Care Trust shall each pay one quarter of Alan's costs, such costs to be subject to detailed assessment if they cannot be agreed.
41. Subject to any further submissions, I will further order that Hertfordshire Partnership NHS Foundation Trust and Ealing Primary Care Trust shall each pay half of Alan's costs in relation to this costs application.

The applications in the other cases

42. As a preliminary matter, I find that it is not disproportionate or unfair to entertain applications in these cases. The essential information is readily available and not in doubt. A refusal to deal with the applications on their merits would not do justice as between the parties.
43. The residents are:

Herts cases

VA, a 65 year old woman with severe learning disability.

DR, a 58 year old man with severe learning difficulties, childhood autism and Tourette's Syndrome

SP, a 56 year old man with severe learning difficulty, childhood autism and challenging behaviour

Barnet cases

DS, a 58 year old man with severe learning disability, autism, epilepsy and challenging behaviour

SB, a 59 year old man with severe leaning difficulty, autism and epilepsy

DH, a 60 year old man with moderate learning difficulties and challenging behaviour

RM, a 54 year old man with severe learning difficulties and childhood autism

EN, a 52 year old man with moderate leaning difficulty, childhood autism and blindness

44. All have been at SRS since it opened in 2001. In each case a move from SRS was proposed. Multiple efforts were made by the residents' solicitors to obtain information and access to funds.
45. In each case, independent psychiatric and social work reports were jointly commissioned from a total of six experts.
46. The psychiatrists are Dr Ahmed Khouja (3 cases), Professor Tony Holland (2 cases), Dr David Thomas (2 cases) and Dr Ian Hall (1 case).
47. The social workers are Ian Gillman-Smith (2 cases) and Stewart Sinclair (6 cases).
48. Their reports came in between September 2010 and the end of the year and run to over 400 pages. I have reviewed their conclusions.
49. The reports are indistinguishable in overall tone and effect from the reports in Alan's case. They represent a compelling body of opinion, of relevance now and for the future.
50. In each case the experts advised against a move, the only variable being the strength with which the opinion was expressed and the degree of praise bestowed on the facilities and staff at SRS. In each case the care team at SRS gave no support to the prospect of a move. In no case did a move enjoy any support from relatives.
51. HCC argues that the court should not try to determine questions about its decision-making on paper, when there has been no oral evidence. It further argues that had its cases been heard, it would have been critical of SRS in a way that the parties to Alan's case were not.
52. At HCC's invitation I have read the statements of its witnesses in the case of DR.
53. Eleanor Attrill, manager of HCC's Positive Move Team, filed a statement in November 2010. She describes DR's life at SRS, refers to the national picture (under the description 'National Drivers') and describes the proposed new facility. She explains how her team was assembled following receipt of a Department of Health grant "to support the move on of people meeting the DH definition of campus." DR was identified as someone who might benefit from such a move. Ms Attrill sets out a list of options and factors and concludes that a move would best meet DR's needs.
54. Ms Attrill's statement comes two months after the reports of Dr Thomas and Mr Sinclair, but she makes no reference to that material or to the views of the care team. She is no more critical of SRS than Ms Batt was in Alan's case.
55. I have also read interviews in December 2010 with Ms Attrill in Dr Khouja's reports concerning VA and SP. She said that she and her team recognise the "tremendous work" done by the staff at SRS.
56. In January 2011, statements were filed by Andrew Lawrence and Judith Jackson of HCC's Learning Disabilities Service. They strongly opposed the opinions of Dr Thomas and Mr Sinclair for very much the same reasons as Ms Batt in Alan's case.

Discussion

57. The same questions must be asked in these cases as in Alan's: see paragraph 26 above.
58. To those questions I give the same answers. I have been unable to identify any significant difference between the circumstances of these cases and Alan's. On the contrary, the arguments deployed in those cases convey a powerful sense of déjà vu. The inspiration for the public bodies was the general benefits of community living, with all the dangers of putting cart before horse that were identified in my substantive judgment.
59. The four conclusions expressed at paragraphs 28-31 above apply equally to the compromised cases as they do to Alan's case.
60. My fifth conclusion in Alan's case was that there was a clear outcome: see paragraphs 32-35. Clearly, the position in the other cases is different in that they have not been tried in the same manner.
61. On behalf of the public bodies it is said that no findings have been made and that the cases were compromised from pragmatic cost-saving motives; accordingly, it cannot be said that the residents succeeded.
62. I am not impressed by this submission. The public bodies have not advanced any reason why the other cases are different to Alan's, or why a different conclusion might have emerged had they been tried. If anything, the case for some of the other moves was weaker in that Ealing at least had a facility into which Alan could be moved without delay.
63. It was open to HCC or the other bodies to have submitted the merits of their cases to trial, but they chose not to do so. Instead they agreed to declarations that a move was not in the residents' best interests. Having done so, they cannot contest the obvious fact that the other residents have "succeeded" in the same way as Alan.
64. The overall conclusions I reached in Alan's case are therefore equally applicable to the other cases and I propose to make the same orders.
65. In each case the residents shall recover half of their costs from the date on which proceedings were issued in their case until 9 February 2011 (in the Herts cases) and until the conclusion of the proceedings on 21 March 2011 (in the Barnet cases). There is a distinction to be drawn between HCC, which offered to settle on 9 February, and the Barnet cases, where the respondents fought on.
66. One eighth of the residents' costs between those dates shall be paid by each commissioning body and one quarter by the provider.
67. Having looked at the matter overall, I shall not make an order for 100% costs in relation to Barnet cases for the period from 14 March 2011 onwards. An order for half costs is sufficient overall.
68. Subject to any further submissions, I will further order that one quarter of the residents' costs in relation to this costs application shall be paid by each commissioning body and one half by the provider.

Conclusion

69. The conclusion I have reached in this case represents a partial departure from the general rule that there should be no order for costs. It is a case where there has been no bad faith or flagrant misconduct, but there has been substandard practice and a failure by the public bodies to recognise the weakness of their own cases and the strength of the cases against them. In such circumstances they cannot invoke Rule 157 at the expense of others.
APPENDIX

COP costs decisions

SC v London Borough of Hackney [2010] EWHC B29 (COP)

70. This was an appeal against an order for costs made by a District Judge arising out of a welfare dispute in which a highly involved relative opposed a local authority's plans for her elderly relation. The District Judge had been critical of the relative's conduct and had said this:

One purpose of the 'no costs' rule is that it allows welfare disputes to be brought before the courts without fear that if a party fails to succeed, he will be liable for his opponent's costs. However, this purpose falls away in my judgment when a party behaves so badly and fails to see reason and commonsense that it would be offensive to allow that party to rely upon the protection of Rule 157. Obviously, it should be reserved for use in exceptional cases, and in my judgment this is such a case.

71. Allowing the appeal, and substituting no order for costs, Senior Judge Lush said this:

The purpose of a general rule is that it should apply in a typical case. SC is not untypical of many of the litigants in person who appear on a regular basis in health and welfare proceedings in the Court of Protection and, despite what [the District Judge] and [counsel for the local authority] have said about this being an exceptional case, it is not. It could almost be said that this aspect of the court's jurisdiction was created to deal with situations of this kind, where a local authority, NHS Trust or private care home is experiencing problems with a particularly difficult and vociferous relative.

Accordingly, the general rule (rule 157) should apply, and the court should only depart from the general rule where the circumstances so justify. Without being prescriptive, such circumstances would include conduct where the person against whom it is proposed to award costs is clearly acting in bad faith. Even then, there should be a carefully worded warning that costs could be awarded against them, and a consideration of their ability to pay. If one were to depart from rule 157 in all the cases involving litigants whom [the expert witness] has described as "extreme product champions", the court would be overwhelmed by satellite litigation on costs, enforcement orders, and committal proceedings.

I have an advantage over [the District Judge]. I can reflect on this case quietly and calmly, with the benefit of hindsight, and without the pressure and overwhelming sense of urgency with which he had to adjudicate at first instance. However, for the reasons given above, I consider that his decision to award costs against SC was partly wrong and partly unjust. Accordingly, I allow this appeal and set aside the original order insofar as it related to the London Borough of Hackney's costs, and in its place I make no order for costs.

72. The judgment also traces the history of the approach to costs in the Court of Protection before the reforms contained in the Mental Capacity Act 2005, and refers in particular to the decision in Re Cathcart [1892] 1 Ch 549. In that case the Court of Appeal made clear that the objective was to achieve a fair and just result and that the good faith of the litigant in question was of importance.

G v E & Ors [2010] EWHC 3385 (Fam)

73. This was a deprivation of liberty case in which Baker J ordered a local authority to pay costs on a combination of the standard and the indemnity basis. In doing so, he said this:

38. The work carried out by the local authorities and other public bodies such as NHS Trusts in this important field cannot be underestimated. Thousands of dedicated professionals and support staff devote their lives to helping people with learning disability, for long hours and low salaries. All public bodies face very difficult times as they struggle to come to terms with the implications of the cuts in public expenditure recently announced. The Court of Protection must work with these professionals under the collaborative philosophy underpinning the MCA and its Code of Practice to which I alluded in the earlier judgment concerning deputyship in these proceedings.

39. That does not mean, however, that local authorities, or any other public bodies, can be excluded from liability to pay costs in appropriate cases. The rules about costs must be applied fairly to all litigants, regardless of who they are. In this case, all the costs of litigation will be borne by the public purse. The Legal Services Commission is an equally hard-pressed public agency and the Commission – and the taxpayers who fund it – are entitled to look to the Court to apply the costs rules impartially and ensure that there is a level playing field. Gone are the days when it is appropriate for a court to dismiss applications for costs on the basis that it all comes out of the same pot. Such an approach would undermine confidence in the courts and distort public administration and accountability. I deprecate the practice of relying on arguments that the impact of a costs order would reduce the local authority's social care budget. The Legal Services Commission could equally well argue that the denial of a costs order in this case in favour of G, F and E will reduce the funds available for other cases. If a costs order is made, that will be the fault of Manchester City Council, not the Court.

40. Of course, it is right that the Court should follow the general rule where appropriate. Parties should be free to bring personal welfare issues to the Court of Protection without fear of a costs sanction. Local authorities and others who carry out their work professionally have no reason to fear that a costs order will be made. The submission that local authorities will be discouraged from making applications to the Court of Protection if a costs order is made in this case is a thoroughly bad argument. The opposite is, in fact, the truth. It is only local authorities who break the law, or who are guilty of misconduct that falls within the meaning of rule 159, that have reason to fear a costs order. Local authorities who do their job properly and abide by the law have nothing to fear. In particular, the Court of Protection recognises that professional work in this very difficult field often involves very difficult judgments and decisions. The Court is not going to impose a costs burden on a local authority simply because hindsight demonstrates that it got those judgments wrong.

41. In this case, however, I am entirely satisfied that the local authority's blatant disregard of the processes of the MCA and their obligation to respect E's rights under the ECHR amount to misconduct which justifies departing from the general rule. Miss Irving boldly relies on the ignorance of the local authority's staff as an excuse and submits that the complexity of the statutory provisions left large numbers of professionals uncertain as to the meaning of "deprivation of liberty". Given the enormous responsibilities put upon local authorities under the MCA, it was surely incumbent on the management team to ensure that their staff were fully trained and properly informed about the new provisions. If a local authority is uncertain whether its proposed actions amount to a deprivation of liberty, it must apply to the Court. As it is, the local authority's actions in this case would have infringed E's Article 5 and 8 rights under the old law as well as under the MCA.

42. Furthermore, I do consider the local authority's conduct, certainly up to the moment when the issue of deprivation of liberty was conceded at the start of the hearing in January, amounted to "a significant degree of unreasonableness" so as to give rise to a liability for costs on an indemnity basis.

43. Miss Irving is on stronger ground when she submits that some form of investigatory process, almost certainly involving court proceedings, would have been required in this case in any event… But, in my judgment, the hearing would have been significantly shorter, and the issues less complex, than they were by the time of the hearing in January to March 2010. In particular, the best interests analysis would have been less complicated than it was by that date when E had been living away from F for over nine months. Furthermore, if the local authority had followed the proper procedure under the MCA, G's role in the proceedings would, in my judgment, have been much more peripheral. It is highly likely that she would not have had to initiate any proceedings herself, and possibly would not have even been a party at all. In the event, it was G who had to take the lead in establishing that the local authority's conduct amounted to a deprivation of E's liberty.

44. Assessing the extent to which the delays in the commencement of proceedings extended the scope of the necessary enquiry is very difficult and a "broad brush" approach is unavoidable. In considering the scope of the enquiry which the court was required to carry out, I bear in mind that not all of the delays were attributable to the local authority.

Manchester City Council v G & Ors [2011] EWCA Civ 939

74. Baker J's decision and reasoning were upheld by the Court of Appeal, which overlaid no gloss of any kind on the rules, beyond agreeing with the judge that it was not a typical case.

D v R (the Deputy of S) and S [2010] EWHC 3748

75. An order was made for a litigant in a property and affairs case to pay their own costs and a proportion of a deputy's costs after a certain date. Henderson J reached this conclusion because the litigant's conduct had led to the hearing being substantially longer and more complicated than it should have been.
76. He also referred to Re Cathcart, noting that under the Lunacy Act 1845 the court's discretion in the matter of costs was unfettered, whereas now it is subject to the Rules. He described the authorities (Cathcart and one other old case) as being of little assistance, although they do make valuable observations on a number of other matters that are as relevant now as then: good faith, the relationship between the parties, the amount of costs and the ability to pay them.

Decisions since Boxall on costs in cases that have been compromised:

Re appeals by Governing Body of JFS [2009] 1 WLR 2353, found at http://www.supremecourt.gov.uk/decidedcases/docs/UKSC_2009_0105_Judgment.pdf.

77. In this decision of the Supreme Court, Lord Hope said this:

No costs orders

24. … As Scott Baker J observed in R (Boxall) v Waltham Forest London Borough Council (2001) 4 CCLR 258, para 12, the failure of a legally aided litigant to obtain a costs order against another party may have serious consequences. This is because, among other things, the level of remuneration for the lawyers is different between a legal aid and an inter partes determination of costs. This disadvantage is all the greater in a case such as this. It is a high costs case, for which lawyers representing publicly funded parties are required to enter a high costs case plan with the Legal Services Commission. It is a common feature of these plans that they limit the number of hours to an artificially low level and the rates at which solicitors and counsel are paid to rates that are markedly lower than those that are usual in the public sector. Mr Reddin has indicated that, as they are defending a win, E's solicitors would not be expected to be paid at risk rates. Nevertheless the rate of remuneration that is likely to be agreed for this appeal will be considerably lower than that which would be reasonable if costs were to be determined inter partes.

25. It is one thing for solicitors who do a substantial amount of publicly funded work, and who have to fund the substantial overheads that sustaining a legal practice involves, to take the risk of being paid at lower rates if a publicly funded case turns out to be unsuccessful. It is quite another for them to be unable to recover remuneration at inter partes rates in the event that their case is successful. If that were to become the practice, their businesses would very soon become financially unsustainable. The system of public funding would be gravely disadvantaged in its turn, as it depends upon there being a pool of reputable solicitors who are willing to undertake this work. In R (Boxall) v Waltham Forest London Borough Council Scott Baker J said that the fact that the claimants were legally aided was immaterial when deciding what, if any, costs order to make between the parties in a case where they were successful and he declined to order that each side should bear its own costs. It is, of course, true that legally aided litigants should not be treated differently from those who are not. But the consequences for solicitors who do publicly funded work is a factor which must be taken into account.

Bahta & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895

78. In this recent decision, the Court of Appeal has stated that a claimant for judicial review will ordinarily be entitled to his costs if he has followed the pre-action protocol under the Civil Procedure Rules and subsequently substantially succeeded in his claim following withdrawal of the defendant's opposition. Referring to publicly funded parties, Pill LJ said:

61. In the case of publicly funded parties, it is not a good reason to decline to make an order for costs against a defendant that those acting for the publicly funded claimant will obtain some remuneration even if no order for costs is made against the defendant. Moreover, a culture in which an order that there be no order as to costs in a case involving a public body as defendant, because a costs order would only transfer funds from one public body to another is in my judgment no longer acceptable.

62. Equally, it is not an acceptable reason to make an order for costs in favour of a claimant, and neither the appellants nor the interested parties have suggested it is, that publicly funded lawyers are, or are claimed to be, inadequately remunerated. Whether to make an order for costs depends on the merits of the particular application. However, both the warning in Scott against too ready resort to making no order as to costs, and the indication by Lord Hope in JFS, cited at paragraph 28, in relation to publicly funded parties, demonstrate the need for analysis of the particular circumstances.

63. I have serious misgivings about UKBA's claim to avoid costs when a claim is settled for "purely pragmatic reasons". … The expression "purely pragmatic" covers a multitude of possibilities. A clear explanation is required, and can expect to be analysed, so that the expression is not used as a device for avoiding an order for costs that ought to be made.

……

66. I do not accede to the request to tack on words to the Boxall guidelines to meet the appellants' submissions. Such a formula would carry the danger of being used mechanistically when what is required is an analysis of the circumstances of the particular case, applying the principles now stated. These include the warning in Scott that a judge should not be tempted too readily to adopt a fall back position.

67. The circumstances of each case do require analysis if injustice is to be avoided. Such analysis will not normally be difficult if the parties have stated their cases competently and clearly and if the statement of reasons required when a consent order granting relief is submitted to the court genuinely and accurately reflects the reason for the termination of proceedings.

68. I accept that the principle of proportionality, and the workload of the courts, require that limits are placed on the degree of analysis which is appropriate but judges should not too readily be deterred. If they find obscurity, or obfuscatory conduct by the parties, that can be reflected in the order made. A willingness to investigate is likely to promote clarity in future cases.

BCT Software Solutions Ltd. v C Brewer & Sons Ltd. [2003] EWCA Civ 939.

79. This was an appeal against a costs order made by a judge after a trial that had begun and been compromised at an early stage. Mummery LJ said this:

4. The arguments advanced on this appeal have demonstrated the real difficulties inherent in asking a judge to exercise his discretion in respect of the costs of an action, which he has not tried. There are, no doubt, straightforward cases in which it is reasonably clear from the terms of the settlement that there is a winner and a loser in the litigation. In most cases of that description the parties themselves will realistically recognise the result and the costs will be agreed. There will be no need to involve the judge in any decision on costs. If he becomes involved, because the parties cannot agree and ask him to resolve the costs dispute, the decision is not usually a difficult one for him to make.

5. There are, however, more complex cases (and this is such a case) in which it will be difficult for the judge to decide who is the winner and who is the loser without embarking on a course, which comes close to conducting a trial of the action that the parties intended to avoid by their compromise.