Judge: Baker J.
Citation:  EWHC 3385
Summary: The long-running case of G v E continues, this time with a decision by Baker J concerning costs. After the naming and shaming of Manchester City Council in a previous hearing, it will come as no surprise that the Council was made the subject of a costs order in favour of the Official Solicitor, G, and E’s carer, F. The hearing concerned the costs of the initial phases of the proceedings, up until the point at which G was returned to F’s care by order of the court. In deciding to depart from the general rule in welfare applications that there should be no order as to costs, Baker J observed that ‘local authorities and others who carry out their work professionally have no reason to fear that a costs order will be made… The Court is not going to impose a costs burden on a local authority simply because hindsight demonstrates that it got [difficult] judgments wrong’. However, in the present case, there had been a ‘blatant disregard of the processes of the MCA and their obligation to respect E’s rights under the ECHR’ which amounted to misconduct sufficient to justify imposing a costs order.
Baker J rejected the Council’s reliance on the ignorance of its staff, stating that notwithstanding the complexity of the MCA and DOLS, ‘Given the enormous responsibilities put upon local authorities under the MCA, it was surely incumbent on the management team to ensure that their staff were fully trained and properly informed about the new provisions.’ Importantly, Baker J confirmed that ‘If a local authority is uncertain whether its proposed actions amount to a deprivation of liberty, it must apply to the Court.’ The same applies, as is evident from cases discussed in previous editions of this newsletter, where not only staff but also assessors under the DOLS regime conclude that there is no deprivation of liberty but where doubt or disagreement remains.
The Council was duly ordered to pay the costs of G, F and the Official Solicitor, and for part of the time period in question on an indemnity basis.
Comment: Perhaps the only mildly surprising element of the judgment was the imposition of costs on an indemnity basis for a period of time; in light of his previous findings as to the conduct of the Council, though, such an approach was, perhaps, all but inevitable. The judgment does provide a salutary lesson in the importance both of adherence to the statutory provisions of the Act and also of adequate training.
Passing reference is made to the problem which the authors know has arisen in numerous other cases, caused by the operation of the statutory charge in respect of publicly funded litigants. Baker J expressed the view that it could not be a proper reading of the relevant legislation that a litigant might have to use his damages to pay the statutory charge in a case where not all of his costs were recovered from the other side, but he heard no argument on the issue and the issue remains.