MR v (1) SR (by her litigation friend the OS) (2) Bury Clinical Commissioning Group

Summary

This is a short judgment from Hayden J on the issue of costs arising from Re N [2015] EWCOP 76 (a medical treatment case to decide whether it was in the best interests of Mrs N who had MS to continue to receive life sustaining treatment).

Hayden J set out the principles briefly: (i) s.55(1) MCA 2005 provides that costs are in the Court's discretion; (ii) the general rule provides that in welfare cases there should be no order for costs (rule 157 of the Court of Protection Rules 2007); and (iii) factors to consider when departing from the general rule are non-exhaustively set out in rule 159.

Hayden J noted that the factors in Rule 159 such as 'conduct', 'manner of response', and 'success' were difficult to apply and were not wholly apposite to a case which ultimately had an investigative, non-adversarial complexion.

The judge identified the central complaint as being that the family should never have been put in a position where they were forced to make the application to the court in the first place and in consequence of the CCG's failure to follow Royal College of Physicians National Clinical Guidelines.

Noting that the determination of costs is not a precise science, but an intuitive art reflecting the Judge's feel for the litigation as a whole and refusing to 'deconstruct the particular instances of the CCG's un-reasonability', Hayden J held that the CCG's conduct had involved avoidable delay and a disturbing disregard for National Guidelines. He further held that the fact that N's daughter had to bring the application meant that she had incurred considerable costs which she should not have had to do.

Citing London Borough of Hillingdon v Neary & Others [2011] EWCOP 3522; North Somerset Council v LW, University Hospital, Bristol NHS Foundation Trust [2014] EWCOP 3 and Re G [2014] EWCOP 5, the judge held that the CCG should be responsible for meeting half the applicant's costs.

Comment

There are relatively few reported judgments on the issue of departing from the usual rule in welfare cases so this succinct judgment is welcome. Whilst it makes clear that each case will turn on its own particular circumstances and no gloss should be made to the legislative provisions, it also contains a judicial acknowledgment of the burdens of bringing an application as a family member rather than participating where the application is brought by the CCG.