Judge: Mummery, Hooper LJJ and McFarlane J.
Citation:  EWCA Civ 939
Summary: The Court of Appeal considered an appeal from a judgment of Baker J ( EWHC 3385 (Fam)) making an award of costs against Manchester City Council. We have discussed this judgment previously, but summarise it again here for ease of reference.
E, who suffers from tuberous sclerosis and learning difficulties, had been accommodated with F pursuant to s.20 of Children Act 1989 in 1999. F then looked after E throughout his childhood. In April 2009 the Appellant removed E from F’s care and placed him in a residential unit. No DOLS authorisation was in place and no Order was sought from the Court of Protection. Following E’s removal from her care, F was not involved in the decision making process and was not allowed to see E until 5 months later. In November 2009, E’s sister, G, made an application to the Court of Protection with the assistance of legal aid. It was not until the first day of the final hearing that the Appellant formally conceded that the circumstances of E’s removal from F’s care had been unlawful and that E had been deprived of his liberty.
In relation to the costs of this aspect of the proceedings, Baker J departed from Rule 157 of the Court of Protection Rules which provides that where the proceedings concern P’s personal welfare, the general rule is that there will be no order as to the costs of the proceedings or of that part of the proceedings that concerns P’s personal welfare. Baker J held that whilst the Court should follow the general rule where appropriate, the Local Authority’s blatant disregard of the MCA on the facts of this case justified a departure from it. The Order was made in the following terms:
“(1) That the local authority [the appellant, Manchester City Council] should pay the costs of G, F and E, including pre-litigation costs, up to and including the first day of the hearing before me on 14th January 2010 on an indemnity basis.
(2) The local authority shall pay one third of the costs of G, F and E from that date up to and including the hearing on 6 May 2010 on a standard basis.
(3) All costs will be subject to a detailed assessment, if not agreed.”
Manchester City Council brought the appeal on the ground that the Judge had erred in departing from Rule 157 and should not have apportioned the costs or alternatively, that the only order that should have been made was a limited order against the Appellant in respect of the costs incurred by the Respondents up to and including the first day of the hearing on 14 January.
In upholding the Order of Baker J, the Court of Appeal reiterated that the appeal could only succeed in the event that Baker J made an error of law or if his conclusions are conclusions which no reasonable judge could reach. In so far as costs decisions are concerned, it is well established that: “[t]he judge has the feel of a case after a trial which the Court of Appeal cannot hope to replicate and the judge must have gone seriously wrong if this court is to interfere.” (Straker v Tudor Rose  EWCA Civ 368,  C.P. Rep. 32, para 2)
On the facts, Hooper LJ held that Baker J had rightly concluded that this was not a paradigm best interests case such that the general rule should be applied. Baker J had been driven to find that the conduct of the Appellant had increased the complexity of the case. Ignorance of the legislation or its complexity did not afford the Local Authority a defence. Even though the Respondents had not sought costs on an indemnity basis, Hooper LJ held that Baker J had been entitled to order that they paid on this basis. Equally, whilst Hooper LJ noted that it was correct that the Appellant had technically succeeded on one part of the case in that no Order to return E to F had been made at the conclusion of the interim hearing (although this order was then made on 6 May 2010), that did not prevent Baker J from ordering that the Appellants pay one third of G, F and E’s costs from 14 January until 6 May 2010 on a standard basis.
Comment: This case is a useful reminder that although generally a Local Authority will not face an adverse costs award in welfare proceedings the Court of Protection has a discretion to disapply Rule 157 if the circumstances of the case justify it. Such circumstances include a failure to adhere to the basic principles of the MCA regime.
One point of regret is that the Court of Appeal did not take the opportunity (as we understood had at one point been envisaged) to give general guidance as to the circumstances under which departure from the general rule under Rule 157 will be likely. Senior Judge Lush has given some guidance to this effect (Re RC (deceased)  EWHC B29 (COP)), and it is perhaps unfortunate that the guidance given in that case was not referred to by the Court of Appeal, whether with approval or otherwise. All we are left with is the somewhat terse reference by Hooper LJ to his agreement with Baker that this was not a “typical” CoP case.
That having been said, it would seem clear that, as Baker J had emphasised at first instance, it is likely that it is only those Local Authorities who act unlawfully who need fear any order as to costs. It further seems likely that the threshold of misconduct justifying such an award (on any basis, let alone an indemnity costs basis) will be relatively high.