In two excoriating judgments (London Borough of Lambeth v MCS (by her litigation friend the Official Solicitor) (1) Lambeth CCG (2)  EWCOP 14; and London Borough of Lambeth v MCS (by her litigation friend the Official Solicitor) (1); and Lambeth CCG (2) EWCOP 20), Newton J has underlined the disastrous- and costly- consequences of “disorganised, muddled and unfocused decision-making”. He was highly critical of the the failure of two statutory bodies concerned to make progress in repatriating MCS, a Colombian woman who suffered hypoxic brain injury as a result of a cardiac arrest in 2014. There was no dispute that MCS, as a result of her brain injury, lacked capacity to make decisions about her residence and care, nor was there any dispute that it was in MCS’ best interests to be repatriated to Colombia in accordance with what had been absolutely consistent wishes.
Although proceedings were commenced by MCS’ RPR in 2016 (as a result of the RPR’s frustration with the delay since 2014 to make the repatriation arrangements), it was not until January 2018 that the judge was able to sign off a plan for MCS’ return to her home, which went smoothly and provided what the judge described as a “happy ending to a tragic story”.
Newton J used uncompromising language in describing the failings of the local authority: “shocking”, “astonishing”, efforts that were “facile.. ineffective” and documentation that was “depressingly scant…unedifying”. The impact of all of this is graphically summarised at  in the first judgment:
“Having now had several hearings (in an application that itself was, or should have been, as I have said, unnecessary), I can only begin to imagine P’s sense of frustration and loss at being kept here for years against her wishes, and for no good reason. As even the proceedings have demonstrated so fully, the arrangements could and should have been established and implemented long ago, years ago, but because of disorganised, muddled and unfocused decision making, and what has at times verged on an arrogance, P has just had to wait. It should be remembered that P had been kept here against her wishes, at a cost to the taxpayer of over £2,000 per week. If the authority had done what it should have done in a timely professional manner, not only could they have saved themselves over £100,000 a year, and saved the cost to the taxpayer of these protracted High Court proceedings, they could have avoided P the years of misery from being kept a prisoner here, against her will.”
Perhaps unsurprisingly, this was followed by an adverse costs order in the second judgment. Newton J commented at :
“Proceedings brought in the Court of Protection almost never attract an enquiry into the issue of costs, essentially since they are inquisitional in nature, the general costs principles do not sit easily within the parameters of the Court’s considerations. However, as the President recognised in Re G  EW COP 5, there will occasionally be cases but there must be good reason before the Court will contemplate departing from the general rule. For example an order for costs was made in Re SW  EW COP 7 where the application was “scarcely coherent … totally without merit … misconceived and vexatious”. These proceedings would not necessarily be categorised in that way, but what if they were or should have been fundamentally unnecessary, that is to say they should never have been brought? Or what if the conduct of the proceedings been so poor, so incompetent that not only did they take much longer than they should (thus unnecessarily necessitating P remaining for so very much longer in difficult circumstances) and requiring many extra unnecessary hearings? In those circumstances is the Court not able to mark its disapproval by the consideration and award of costs.”
The judge did not accept that the statutory bodies had been (as they submitted) “assiduous” in trying to arrange MCS’ repatriation. He did accept that the operation to return MCS to Colombia was novel for those concerned with making the arrangements. Despite this he was highly critical of the failure to make “basic common-sense enquiries” with the Colombian Embassy and to apply sufficient professional focus. The judge commented at  that
“It should not be thought that I overlook the care that was provided to P, nor, ultimately her successful repatriation, but what is impossible to ignore is the disorganised thinking, planning and management which resulted in her detention here for so very much longer than necessary.”
The judge ordered “without hesitation” that the local authority and CCG should fund the costs of the proceedings. This is an important reminder that simply bringing a case before the court, and achieving the right outcome in the end, will not avoid the penalty of a costs order if there are failings of the magnitude that occurred in this case. The fact that the case involves an issue which may well be novel and operationally complex does not negate the obligation to bring sufficient professional focus to bear in order to draw the case to a timely conclusion.
[We are very happy to publish this guest post from Ragani Lindquist of the Office of the Official Solicitor]
After years of uncertainty and inconsistency over the application of the statutory charge in respect of Human Rights damages claims, the Legal Aid Agency has finally put its position in writing within the adult welfare context, namely that the application of the charge in respect of the welfare proceedings in the Court of Protection can be avoided by ensuring that damages are not pursued or awarded within the welfare proceedings and by keeping the costs of pursuing the damages claim separate.
This follows hot on the tail of a published position statement concerning the position in family proceedings, where a similar approach is now being taken. This is a significant shift from the previous indication that, if the claim was in any way linked to the publicly funded welfare/s21A proceedings, a charge from the costs of the original (usually non-means, non-merits tested) proceedings was to attach to any damages recovered, unless costs were obtained for both sets of proceedings. Given costs orders are rare in welfare proceedings, historically, for a number of claimants, it was often after damages had been ordered or negotiated within the original proceedings, that it became apparent that the charge would effectively swallow up the damages. This left vulnerable clients in a situation where there was no effective remedy for a serious human rights breach. This change and clarification in position is welcomed; the LAA’s letter sets out the position in more detail. Practitioners will note the reference to following the guidance provided by Keehan J in H v NCC and LAA  EWHC 282, which suggests among other things applying for a separate legal aid certificate for the damages claim (paragraphs 115-117).
The Official Solicitor’s office is grateful to all of those involved in assisting to achieve this certainty – there are too many to name them all but particular thanks must go to Chris Buttler from Matrix, Anna Moore from Leigh Day and Andrew Bowmer from Miles & Partners.
The Court of Protection will accept applications by e-mail to the relevant “hub” closest to P as from the end of July 2018. You can read the letter from the Directorate, explaining exactly how this will work, here.
The Supreme Court has granted permission to the Official Solicitor to appeal against the decision of the Court of Appeal in Re D  EWCA Civ 1695. The hearing has been expedited and listed for 3 and 4 October. Anyone who wants to understand how the MCA 2005 is intended to interact with the Children Act 1989 will be well advised to keep a careful eye out for the judgment in due course.
The Supreme Court will hear the appeal in MM (concerning conditional discharge and confinement) on 26 July. It has also very recently been confirmed will hear the appeal in PJ (concerning the jurisdiction of the Mental Health Tribunal over human rights issues, as well as CTOs and deprivation of liberty) on 22 October.
The snappily named Court of Protection, Civil Proceedings and Magistrates’ Courts Fees (Amendment) Order 2018, coming into force on 25 July, will reduce the fees for applications from £400 to £385, and for appeals from £400 to £320.
The reduction to these fees follows, according to Parliamentary Under Secretary of State for Justice Lucy Frazer QC MP “a thorough and detailed review undertaken by officials in the Ministry of Justice into the cost of these proceedings. Our review has identified a number of cases where the fees charged were above full cost recovery levels.” It is not clear at this stage whether those who have been charged the higher sums in the CoP will also benefit from the refund scheme that is being applied in relation to excess fees identified in other areas.
The Mental Capacity (Amendment) Bill has just been introduced to the House of Commons.
The press release explains that
“The reforms seek to:
- introduce a simpler process that involves families more and gives swifter access to assessments
- be less burdensome on people, carers, families and local authorities
- allow the NHS, rather than local authorities, to make decisions about their patients, allowing a more efficient and clearly accountable process
- consider restrictions of people’s liberties as part of their overall care package
- get rid of repeat assessments and authorisations when someone moves between a care home, hospital and ambulance as part of their treatment
The reforms will also save local authorities an estimated £200 million or more a year.”
The progress of the Bill will be watched by many.