Re JB (Costs)

In this case, the Court of Protection had been asked to take aggressive steps in terms of service provision.   In Re JB, the local authority applicant in question had gone one stage too far, seeking an injunction that: (1) a young man should remain at a specialist residential facility which had given notice that he had had to leave; and (2) no steps were to be taken to remove him to alternative accommodation without the permission of the court.   However, the court having listed the matter for a full hearing of the question of whether it had the jurisdiction to grant the injunction, the local authority withdrew the application.   A costs application then ensued against the local authority.   The Official Solicitor argued that a departure from the ordinary ‘no costs’ rule was warranted because:

The application was doomed because the court’s power was limited to making decisions on behalf of JB, which he could make if he had capacity. This proposition of law is clear from the decision of Baroness Hale in Re: M (An Adult) (Court of Protection: Jurisdiction) [2017] AC 459. It should not be controversial.

Beyond the 24 July 2020, which was the date SG Limited/AH had agreed that JB could remain residing at AH, AH was not an available option for the court to consider in determining JB’s best interests. SG Limited/AH had given valid notice under the contractual arrangements between it and the local authority to terminate the placement with effect from that date. The court had no power to make any orders under section 16(2) of the MCA 2005. The court had no power to make an injunction order against SG Limited/AH compelling AH either to keep JB at AH beyond the 24 July 2020 or preventing JB from being removed from there. In its skeleton argument AH/SG Limited/AH asserted, correctly, 15.7 rather, “It is the conduct of the local authority which is improper and impermissible in making and/or maintaining its application for injunctive orders in the Court of Protection which seeks to circumscribe a contractual relationship between itself and AH SG to which P, JB, has no involvement.

Reliance by the local authority on the decision of Keehan J. in Re: SF (Injunctive Relief) [2020] EWCOP 19 was misconceived. This case concerned the proper use of the Court of Protection’s powers pursuant to section 16(2) and (5) of the MCA 2005. It did not involve the creation by the court of an option where none existed.

Keehan J “entirely agreed” with this submission, holding that the application was totally without merit, and that the local authority’s conduct in making and pursuing the application amounted to unreasonable conduct which justified a departure from the usual rule of no order for costs.  The local authority was therefore ordered to pay the costs of SB (the man’s mother) and  the Official Solicitor occasioned by the injunction application.

The case serves as an important reminder that the powers of the Court of Protection are extensive but – ultimately – limited, and that where “rigorous probing, searching questions and persuasion” (as per Sir James Munby P in Re MN (Adult) [2015] EWCA Civ 411) do not succeed, it cannot, itself, magic up options that do not exist.