Update to para 5.35, page 160: Costs

In MR v SR and Bury Clinical Commissioning Group [2016] EWCOP 54[1], a rare costs award has been made in a medical case in the Court of Protection. The substantive application in this case was brought by SR’s daughter, MR, in the face of the Clinical Commissioning Group’s (‘CCG’) failure to do so. The CCG opposed the application and maintained its opposition until the Official Solicitor changed his position, after the first day of evidence. The parties then agreed that the application should be granted but Hayden J considered it necessary to hear a further day’s evidence from the three instructed experts before reaching his conclusion. MR sought her costs of bringing the application.

 Hayden J observed that determination of costs is not a precise science but ‘an intuitive art reflecting the judge’s feel for the litigation as a whole’. He agreed with MR that the CCG were guilty of avoidable delay and ‘a disturbing disregard for National Guidelines’; he also agreed that MR should not have had to bring the application in the first place, noting that if the appropriate health authority had done so, MR could have avoided costs by ‘’sheltering under the wing’ of the Official Solicitor or health body.  As applicant, she had no real choice other than to pay for representation. Hayden J said it would not be appropriate to burden the CCG with the full costs of the final hearing when he himself had made the decision to continue that hearing, but that he was satisfied that the CCG should pay half of MR’s costs.

This case is a reminder that the Court of Protection’s power to award is most often exercised when a public authority has failed to initiate proceedings. The logic is clear: apart from the significant costs consequences of being the applicant in proceedings, it is a huge emotional burden to start an application seeking the death of a close relative. It is also a reminder of the importance of following the RCP guidelines and complying with any directions as the courts continue to push for more efficient conduct of COP cases.

 

[1] the sequel to Re N; M v (1) Mrs N (By Her Litigation Friend the Official Solicitor) (2) Bury Clinical Commissioning Group (3) A Care Provider [2015] EWCOP 76, [2016] COPLR 88 [discussed at §13.11], in which Hayden J granted a declaration that it was lawful to withdraw life sustaining artificial nutrition and hydration from a woman with advanced multiple sclerosis, who was found to be in a minimally conscious state.