Judge: Court of Appeal (Sullivan and Ryder LJJ and Dame Janet Smith)
Citation:  EWCA Civ 446
This case is the latest episode in the notorious Redbridge saga and concerns the issue of costs.
The Official Solicitor (OS) appealed against a costs order made by the President of the Court of Protection requiring Associated Newspapers Limited (ANL) to pay 30% of G’s cost and 30% of the costs of London Borough of Redbridge. The costs order was made following an unsuccessful application by ANL to be joined as a party to the proceedings. London Borough of Redbridge did not appeal but the OS appealed on behalf of G.
ANL had made its application following a decision that it was not in G’s best interests to have media contact. The OS had contended that the terms of the order also prohibited social visits. The President held that ANL’s application to be joined as a party to the COP proceedings was misconceived and failed completely. However, that did not mean that ANL should necessarily have to pay all the costs and there were three factors which limited the costs order to 30%: (1) the public importance of the issues; (2) the standard adopted beforehand by the OS; and (3) that ANL should not have to pay two sets of cost for both the OS and local authority.
The OS relied on two grounds of appeal: (1) The President erred in holding that the Court of Protection Rules applied. The application fell to be determined in accordance with the Civil Procedure Rules (CPR) where the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party. (2) The President had erred in the exercise of his discretion in the proportionate costs order that he made.
The Court of Appeal rejected both grounds of appeal and upheld the President’s decision on costs. As to the OS’s first submission, the Court of Appeal called this “a device to suggest that the costs presumption should be reversed.” As to the second, the Court of Appeal considered that whilst the OS had succeeded on the application, he had lost on a point of principle. ANL had lost the application but had achieved clarity in relation to a point of principle.
Three points arise from this judgment.
First, the confirmation by the Court of Appeal that applications to be joined as a party to proceedings before the Court of Protection are covered by the COPR, not the CPR.
Second, the Court of Appeal was at pains to emphasise the public importance of the media’s general role. Echoing the President’s comments, the Court of Appeal described the OS’s mindset as failing to recognise the “vitally important role of the media and the valuable service the media provides.” The importance of the public interest raised by the media and the response of the OS were of significance to the cost decision made.
Third, the Court of Appeal’s decision is another example of just how difficult it is to overturn a costs judgment on appeal. As Lord Justice Ryder said, “[a]n appeal against the exercise by a judge of his discretion faces a high hurdle.” Citing the case of Burchell and Ballard  EWCA Civ 358, the court reminded readers that appeals against orders for costs are notoriously difficult to sustain as the trial judge has a wide discretion which the Court Appeal will only interfere with if the judge has exceeded the generous ambit of his discretion.