In Re TL  EWCOP 1, Baker J has confirmed that, where claims for damages and/or declarations under the HRA 1998 are brought in the Court of Protection, the Civil Procedure Rules 1998, rather than the Court of Protection Costs Rules will apply (see paras 33 and 34). In consequence, the normal costs rules – and risks – applying to civil litigation will apply.
That having been said, and in light of the recent spate of cases concerning HRA claims and care proceedings covered in the March 39 Essex Chambers Mental Capacity Report (to which can also be added Re SW & Re TW  EWHC 450 (Fam)), it is increasingly obvious that it will only rarely be appropriate to bring such HRA cases within the four walls of the CoP. Rather, separate County Court (or High Court proceedings) should be brought – or at least intimated, with settlement or other ADR being infinitely preferable.
Mr Justice Peter Jackson has expressed concern about the costs and delay – and associated “human misery” and drain on manpower- in two Court of Protection cases, which in his conservative estimate cost around £9,000 per month, largely paid for by the State.
You can read his strong judgment here. It echoes some of the comments made in the family sphere (V v V,  EWHC 1190 (FAM); J v J  EWHC (Fam)).
The following comments should be noted by practitioners:
- The inconsistency of “extravagance” in CoP proceedings with the parties’ duty to assist the court in furthering the over-riding objective;
- The importance of restraining excessive costs where P’s money is being spent on deciding his future, whether he likes it or not
- The judge’s criticism of the “search for the ideal solution, leading to decent but imperfect solutions being rejected”- s1(5) “calls for a sensible decision, not the pursuit of perfection;
- It is not necessary to take up “every conceivable legal or factual issue, rather than concentrating on the issues that really need to be resolved”.
- The need for professional co-operation. Here the judge noted the role of the litigation friend in one of the cases: “This was epitomised in Case A, where the litigation friend’s submission focussed heavily on alleged shortcomings by the local authority, even to the extent that it was accompanied by a dense document entitled “Chronology of Faults”. But despite this, the author had no alternative solution to offer. The role of the litigation friend in representing P’s interests is not merely a passive one, discharged by critiquing other peoples’ efforts. Where he considers it in his client’s interest, he is entitled to research and present any realistic alternatives.“
The judge concluded:
- “The main responsibility for this situation and its solution must lie with the court, which has the power to control its proceedings. The purpose of this judgment is to express the view that the case management provisions in the Court of Protection Rules have proved inadequate on their own to secure the necessary changes in practice. While cases about children and cases about incapacitated adults have differences, their similarities are also obvious. There is a clear procedural analogy to be drawn between many welfare proceedings in the Court of Protection and proceedings under the Children Act. As a result of the Public Law Outline, robust case management, use of experts only where necessary, judicial continuity, and a statutory time-limit, the length of care cases has halved in two years. Yet Court of Protection proceedings can commonly start with no timetable at all for their conclusion, nor any early vision of what an acceptable outcome would look like. The young man in Case B is said to have a mental age of 8. What would we now say if it took five years – or 18 months – to decide the future of an 8-year-old?
- I therefore believe that the time has come to introduce the same disciplines in the Court of Protection as now apply in the Family Court. Accordingly, and at his request, I am sending a copy of this judgment to the President of the Court of Protection, Sir James Munby, for his consideration.”
The case of LB of Bexley v V, W and D  EWHC 2187 (Fam) contains a stark reminder of the need to comply with court directions concerning the filing of evidence. The local authority in this case failed to file its evidence in accordance with deadlines which had already been extended, and despite the court stating that if any party was going to be unable to comply with the extended deadlines, it should apply to the judge’s clerk for an extension. It was said on the local authority’s behalf that no application was made as the local authority did not know when it would be able to produce its evidence. Unsurprisingly, the court was not impressed, but fortunately it was possible for amended directions to be given which enabled all parties to file their evidence without jeopardising the final hearing in the proceedings. The local authority was criticised and required to pay the costs of the hearing:
“I understand that social work professionals and lawyers, whether engaged by public authorities or in private practice, are under enormous great strain in the current circumstances and economic climate, particularly given changes to public funding, but that does not relieve them of the obligation to comply with orders made by the court. The failures by the London Borough of Bexley in this matter are stark. This hearing would not have been required if they had complied with their orders and, in my judgment, it was right that this matter was listed at the earliest opportunity to address those failings and to enable the other parties to make submissions as to when they could comply with their obligations to file documents. Accordingly, I am in no doubt that it is right that the local authority should be ordered to pay the costs of this hearing.”
Similar approaches may well be taken by judges in the Court of Protection, particularly where failures to meet court deadlines delay the substantive determination of an application. And we would note the case of Re W (Children)  EWFC 22 as a further example of the very robust approach that is being taken in family cases – in the context of much tighter rules in the FPR; we anticipate that it is only a matter of time before the COPR includes similar provisions and a similar approach is taken in CoP cases.
[A version of this note appeared in the August 2014 Thirty Nine Essex Street Mental Capacity Law Newsletter]