JMH v CFH, SAP

In this case, the court had to decide what costs a litigant in person is entitled to in the Court of Protection.

The first point that was argued was made by SAP, who was a party to the application because she was a nominated attorney under a disputed LPA. She was also an employed solicitor.

She argued that as an employed solicitor she was entitled to costs on the Chorley principle. This derives from London Scottish Benefit Society v Chorley [1884] 13 QBD 872. Its modern formulation can be found in Halborg v EMW Law LLP [2017] EWCA Civ 793, extended by Robinson v EMW LLP [2018] EWHC 1757. Its effect is that where a solicitor is party to litigation and instructs the firm of which he is partner, member or employee/consultant to represent him, the party can recover costs to include the solicitor's profit costs of the party's own time to the extent that that time would be time another solicitor would otherwise have spent on the case.

The court held that that principle applied in the Court of Protection (see paragraph 33) but held that it did not apply in this case as SAP had, throughout, asserted that she was acting in person (see paragraph 15, 25 and 32).

There then fell to be considered whether SAP was entitled to litigant in person costs. CPR r.46(5), which deals with litigant in person costs, is disapplied in the Court of Protection. It was argued that that meant that SAP was not entitled to any costs (save disbursements). The court held otherwise at paragraphs 35-38 as follows:

35. It follows that the only inter partes costs the second respondent can recover are those that any litigant in person could recover and those are the disbursements/court fees and any time costs recoverable on a detailed assessment. I appreciate that in considering that SAP is entitled to her time costs as a litigant in person I am differing from DJ Eldergill in London Borough of Hounslow v A Father & A Mother Case No. 13020924. I was provided with this case the day before I handed down judgment. Having considered it, and with great respect, I am not persuaded that the effect of the disapplication of CPR 46.5 or the fact that the Court of Protection is not a Senior Court for the purposes of the Litigants in Person (Costs and Expenses) Act 1975 necessarily results in a litigant in person being unable to recover time costs.

36. In my judgment, the disapplication of CPR 46.5 simply gives the Court of Protection wider discretion to deal with costs justly and proportionately in every case. In a large estate where a litigant has necessarily been required to carry out a lot of work, it may be proportionate to allow him some or all of his time costs at a rate that the costs assessor deems fit in the circumstances of the case. That may result in no time costs being allowed or the rate being limited. A blanket ban on the recovery of time costs would mean that a litigant in person could be severely disadvantaged. As DJ Eldergill noted, this would be an extremely unfair outcome, particularly in cases where a litigant in person must undertake considerable work to defend themselves against, say, an allegation of fraud. In my judgment, such a blanket ban, if intended, would have been set out clearly in the rules.

37. The fact that the Court of Protection is not a Senior Court for the purposes of the Litigants in Person (Costs and Expenses) Act 1975 is of no assistance. The Court of Protection did not exist in 1975 and there is no material before me which would indicate that a deliberate decision was made to disapply the 1975 Act in the creation of the Court of Protection with a view to preventing litigants in person from recovering any time costs – that is a leap too far. The rules applicable to deputies are not, in my judgment analogous to inter partes costs in litigation. Part of, if not the primary, reason for the rules regarding deputies is to prevent conflicts of interest arising and/or to avoid a fiduciary profiting from their position. Only the court can allow a deputy remuneration for time spent discharging their duties and, as far as I am aware, this power is only used in cases involving professional deputies.

38. Notwithstanding its disapplication, in my judgment CPR 46.5 and/or the 1975 Act may, nonetheless, be helpful to a costs' judge in formulating his or her approach to the quantification of SAP's costs. This is a relatively large estate and the costs involved are relatively low once one disregards the client/solicitor costs and any deputy/client costs. It seems to me that SAP is obliged to reimburse KSN for disbursements under the common law therefore they are recoverable.

This judgment clarifies that a solicitor party in the COP is entitled to charge for their time as a solicitor pursuant to Chorley principles and what such a solicitor needs to do to be able to do so.

It also holds that, in default, a litigant in person in COP is entitled to some costs for their time with CPR r.46(5) as a guide without its being of direct application. In so ruling, as the judge acknowledged, the court was departing from the view taken by DJ Eldergill. The common law position is that a person who does not engage a solicitor to act for him cannot (outside of Chorley principles) get costs for his time he can only recover expenses. The Litigants in Person (Costs and Expenses) Act 1975 was passed to reverse that rule but it only applies where the Act or an Order made thereunder so provides. By its terms, the Act is not applied to the COP as the COP is not a Senior Court and it has not been added to the list by an Order. The fact that the COP was not a court in 1975 is not especially helpful as the Act has been amended since the COP became a court without including the COP in the courts to which it applies.