EG v RS, JS & BEN PCT

Summary: In this judgment, delivered on 29.6.10, HHJ Cardinal heard an appeal by a solicitor (EG) against an order made that she pay the costs of her failed application for permission to apply to be appointed the health and welfare deputy of RS. She was ordered to pay the costs of JS, the sister of RS, BEN PCT (the Primary Care Trust involved) and the OS representing RS as litigation friend.

The case arose out a complex and acrimonious dispute regarding the welfare and finances of RS, a man severely injured in a road traffic accident and brain damaged as a result. In addition to those identified above, CH, the brother in law of RS and estranged husband of JS, was a key player, as property and affairs deputy of RS. At the material time, EG was CH's solicitor. In February 2009, she applied for permission to be appointed health and welfare deputy for RS. By her application, EG sought permission to apply to be Deputy and in that application raised the potential conflict arising out of her role as CH's solicitor. That application was considered by District Judge Owen initially at a directions hearing in May 2009, at which the Official Solicitor queried the need for a health and welfare to be appointed at all. The hearing was adjourned for EG to set out why an appointment was appropriate and why she considered she was the suitable applicant. EG filed a witness statement setting out these matters in August 2009. The response of JS's solicitors was that she was open though undecided as to the suggestion that a Deputy should be appointed but that EG was not suitable because of a conflict of interest. Their skeleton argument invited the court to dismiss EG's application. BEN PCT indicated it did not take a position as to whether or not a Deputy should be appointed or whether it should be JS or EG or another. The OPG filed a position statement as to its application only and was not concerned with welfare matters.

At the hearing on 25.8.09, District Judge Owen refused the application for permission of EG to be appointed and ordered her to pay costs of JS, Official Solicitor and BEN PCT. HHJ Cardinal, having directed himself as to the appropriate test regarding appeals set down in Rules 173 and 179 of the Court of Protection Rules 2007 and costs set down in Rules 157 and 159, set out the competing submissions of EG on the one hand RS and JS on the other (the appeal against BEN PCT having been conceded by consent; furthermore, JS limited herself upon appeal to seeking her costs of the hearing on 25.8.09). In setting out the submissions of EG, HHJ Cardinal made a number of pertinent comments, including (at paragraph 27) that he had been caused the gravest concern by the statement in the permission form she completed that she had advised CH and would like the "court to determine whether in its opinion this causes any conflict of interest for me due to the current application. I believe my duties in advising CH and in acting as health and welfare deputy would not conflict but would ask the court to give specific consideration to this issue."

HHJ Cardinal noted that "[i]t is just not possible to act as honest broker on one hand and firmly on the side of one party alone on the other. It should have been clear even then to EG that she simply could not realistically pursue the application. Later on in his submissions to me Mr O'Brien [for RS] posed the question what would an ordinary member of the public think? The obvious answer is that the appointee has a prejudice, a bias, in favour of his/her client. I am disappointed that EG did not see this at the outset".

HHJ Cardinal further noted (at paragraph 28) that he considered that EG had been naïve to apply, because it was or should have been obvious "that she simply could not be seen by the family of RS as an impartial Deputy in the light of past events and of the current litigation." His concerns as to her ability to act impartially were only further heightened by a letter that she had sent (as CH's solicitor) on 17.8.07, in which she set out contact arrangements between JS and RS that would be acceptable to CH. Indeed, he noted (at paragraph 35) that he could not think of a case "where the involvement of the solicitor had hitherto been more clearly on one side only." Whilst HHJ Cardinal (at paragraph 37) acquitted EG of acting in bad faith, he found that she was naïve and "pressed on with an application which she ought to have known was doomed to fail."

In the circumstances, HHJ Cardinal found (at paragraph 38(iii)) that he could not see how District Judge Owen had strayed outside the terms of the Rules or the dicta in Re Cathcart [1893] 1 Chan 466, long regarded as the touchstone for applications for costs in cases involving those without capacity. Importantly, whilst he accepted (at paragraph 38(iv)) that as a matter of public policy the Courts should not discourage professionals from seeking appointments as Deputies by way of costs sanctions, he noted that there should be a limit to such applications "where there is clear opposition and acrimony given the role of the would-be Deputy hitherto. It seems to be that such an applicant ought to ask him or herself am I in any way compromised by my intervention to date? Is there any evidence of my taking sides too strongly? Can I be sure that all parties will indeed regard me as a neutral arbitrator? Am I really suitable given the history of conflict with my client and my support of him? Would my appointment mean more conflict?" HHJ Cardinal endorsed the comments of the District Judge that the application had been an "unfortunate" one and declined even to grant permission to appeal his decision (save in respect of BEN PCT, and in respect of whether EG or her firm should pay, it having been conceded by the respondents that it should be her firm).

Comment: As HHJ Cardinal noted at the outset, the appeal was "a cautionary tale for all those who put themselves forward as professional deputies when too closely associated with one party in a dispute before the Court of Protection." It is in retrospect more than a little surprising that EG chose to advance her application at all, let alone that she persisted with it beyond the directions hearing in May 2009, and the facts of the case illustrate clearly how careful professionals must be in ensuring that they both are and seen to be independent and impartial when advancing themselves as deputies. It is not beyond the bounds of possibility that a solicitor who has provided advice to one party could then advance themselves as a professional deputy; however, this judgment makes it very clear that they do so at their peril where there could be any suggestion that they were "tainted" by their prior association, especially where (as so often) they put themselves forward in the context of a dispute between family members. Merely being a professional is not, in such a circumstance, enough.