Judge: Court of Appeal (Laws, Jackson and Black LJJ)
Summary: This is an important decision of the Court of Appeal upon CPR r.52.9A, a provision of the Civil Procedure Rules 1998 brought in as of 1 April 2013 by the sweeping reforms instigated after the Jackson review of costs in civil litigation. It suggests – by analogy – steps that appellants to the Court of Appeal from proceedings before the Court of Protection can take to secure against the operation of the conventional costs rules in the Court of Appeal that costs follow the event. If they do not take the steps outlined in the judgment, then – in contrast to the position that prevails when a case is being heard in the Court of Protection before any judge up to an including a puisne judge of the High Court sitting in the Court of Protection – the loser of the appeal pays the costs of the winner.
By way of background, we remind readers that the Court of Appeal in Cheshire West No 2  EWCA Civ 1333 rejected an argument made on behalf of the unsuccessful party, P, that there should be no order as to costs because proceedings in the Court of Protection were analogous to public law family proceedings (and appeals therefrom) which are exempt from the material provisions of the CPR (these are now contained in CPR r.44.2(3)(a); prior to 1 April 2013 they were contained in CPR r.44.3(3)(a). Munby LJ held at paragraph 6 (with references to the CPR amended to reflect the position that prevails post 1 April 2013):
“I cannot accept Mr Gordon’s argument of principle [on behalf of P]. It comes perilously close to an impermissible invitation to us to re-write [CPR r.44.2], whether by incorporating within it the principle in r 157 of the Court of Protection Rules or by adjusting CPR r [44.2(3)] to include a reference to the Court of Protection. Our task is to apply CPR r [44.2]. I accept, of course, that we can properly have regard to the fact that the appeal concerns a vulnerable adult in the context of the court’s protective functions and not, for example, a valuable cargo in the context of a commercial dispute, but this is not because of some supposed analogy with either CPR r 44.2] or r 157 of the Court of Protection Rules. It is simply because it is one of the ‘circumstances’ – and, it may be, one of the more important of the circumstances – to which CPR r 44.3(4) bids us have regard.
In Cheshire West No 2, the Court of Appeal in fact made no order for costs, but left open the possibility that an order for costs could flow in a different case.
CPR r.52.9A may well not have crossed the radar of many CoP practitioners (it is clear from the decision in JE that is unknown territory for others too), but it provides that:
(1) In any proceedings in which costs recovery is normally limited or excluded at first instance, an appeal court may make an order that the recoverable costs of an appeal will be limited to the extent which the court specifies.
(2) In making such an order the court will have regard to-
(a) the means of both parties;
(b) all the circumstances of the case; and
(c) the need to facilitate access to justice.
(3) If the appeal raises an issue of principle or practice upon which substantial sums may turn, it may not be appropriate to make an order under paragraph (1).
(4) An application for such an order must be made as soon as practicable and will be determined without a hearing unless the court orders otherwise.
The Court of Appeal in JE considered an appeal from the Upper Tribunal in an immigration case. The Appellant sought, in the guise of an application under CPR r.52.9A, a ‘one-way costs shifting order’ – i.e. an order that the Respondent Secretary of State should be prevented from recovering any costs (save for misconduct) from the Appellant in any event, but that, in the event that the Appellant were to be successful in her appeal in full or in part, the usual costs rules apply.
Lord Justice Jackson, giving judgment on behalf of the Court of Appeal, had no hesitation in finding that this application was entirely misconceived as the Court had no power to grant the order sought under CPR r.52.9A. He took the opportunity to spell out, however, precisely what the rule is intended to address and how it should be used. At paragraphs 7-13, he held thus:
“7. Rule 52.9A is part of a package of rules which were introduced on 1st April 2013 in order to implement recommendations made in the Review of the Civil Litigation Costs Final Report (January 2010). The specific mischief against which that rule is directed is set out on pages 340-341 of that report.
8. Rule 52.9A (1) refers to ‘the recoverable costs of an appeal’. That phrase means the costs recoverable by the winning party, whoever the winner may turn out to be. The rule deals with appeals coming up from a ‘no costs’ or a ‘low costs’ jurisdiction. It enables the appeal court to put in place a similar regime to that which applied in the court or tribunal below. The rule does not contemplate an order in favour of just one party, win or lose.
9. Three further considerations support the interpretation set out in the previous paragraph. First, the opening lines of rule 52.9A (1) set the context. The rule is specifically concerned with appeals from jurisdictions in which all parties are subject to the same restrictions upon recoverable costs. Secondly, as Laws LJ pointed out in argument this morning, the three considerations set out in paragraph (2) of the rule are relevant to considering whether or not to maintain a ‘no costs’ or ‘low costs’ regime upon appeal. Thirdly, there are separate rules which provide for qualified one-way costs shifting in specified cases. In my view rule 52.9A is not concerned with one-way costs shifting.
10. If an appeal is brought from a ‘no costs’ or ‘low costs’ jurisdiction, both parties should give prompt consideration to whether they (a) want and (b) would qualify for such an order. Very often they will not want such an order, because they desire to recover their costs if they win. So be it.
11. It is important that any application for an order under rule 52.9A is made at an early stage, so that both parties know the costs regime under which they are proceeding. Rule 52.9A (4) requires the application to be made “as soon as practicable”. That does not mean immediately. It envisages that both parties will require a reasonable time in which to consider their position.
12. If the appellant seeks an order under rule 52.9A, it may be convenient and economic to include such an application in the appellant’s notice, but the rule does not require that. Mr Paul Joseph for the Secretary of State points out that both parties may need time to consider to their position once they know whether permission to appeal has been granted and upon what grounds. He suggests that a sensible cut-off point would be two weeks after the grant of permission has been notified to the respondent. That is the date by which the respondent must serve the respondent’s notice if any. I can see force in that submission, but it is not necessary to decide that question in the present case. Furthermore it would be undesirable to attempt to cater for all the factual circumstances which may arise. Anyway it is not the function of this court to re-write the rule.
13. Once made the application can then be dealt with in writing at modest cost, unless the court otherwise orders. Any challenges to the court’s decision will not be entertained unless the court has made a clear error of principle.”
Whilst the Jackson Report did not consider appeals from the Court of Protection at the material point referred to by Jackson LJ, it seems to us that – at least in relation to welfare proceedings – it can properly be said that the Court of Protection is a ‘no costs’ regime, because r. 157 expressly provides that the general rule is that “there will be no order as to the costs of the proceedings or that part of the proceedings that concerns P’s own welfare.”
It therefore seems to us that – as Jackson LJ highlights at paragraph 10 – both (or, where appropriate, all) parties to an appeal to the Court of Appeal from a decision of the Court of Protection in a welfare case should consider whether they (a) want or (b) would qualify for such an order. It may also be appropriate to consider making such an application in a case relating to P’s property and affairs on the basis that r.156 could be said either to limit or to exclude the recovery of costs (at least as understood on the conventional basis – i.e. by the ‘winner’ from the ‘loser) because it provides that the costs will, in general, be paid by P or charged to his estate. It may well be that judicial guidance will be needed in due course as to this latter scenario.