Citation:  EWCOP 51
Rules 156 and 159 Court of Protection Rules 2007 provide for the general rule in property and affairs cases that costs come from P’s estate with rule 159 stating the matters that may lead to a departure from that rule (principally conduct).
In this case, Senior Judge Lush considered those rules and the guidance in G v E (Costs)  EWHC 3385 (Fam) 2010 COPLR (Con Vol) 454 in determining the proper costs order to make on the dismissal of an application the Public Guardian brought to determine the capacity of CT.
CT suffered a stroke. Upon discharge from hospital in November 2013 he went to live with his daughter EY. He executed a LPA in her favour on 18 June 2013 and an application to register it was made the same day and it was duly registered.
CT’s son raised concerns with the OPG and the local authority’s social services also had safeguarding concerns. In January 2014, the OPG commissioned a Court of Protection Special Visitor to visit CT but EY would not let him examine CT.
Hence the application. Eventually, the parties (EY and the Public Guardian) agreed that Professor Jacoby should prepare a capacity report (EY vehemently stating that CT had capacity and that she had not exercised her powers under the LPA).
Professor Jacoby concluded that CT probably suffered from vascular dementia and had periods of delirium when he did not have capacity but other periods when he did. He emphasised that CT needed disinterested advice, into which emphasis the Senior Judge read that EY was not giving such advice.
EY ambitiously asked for her costs against the OPG on the grounds that the OPG had wrongly assumed the CT did not have capacity when he should have assumed to the contrary, that he did not communicate with CT direct and had failed to act fairly in the proceedings. The Senior Judge rejected all the criticisms holding that the OPG had ample grounds for concern and that in fact it had been EY who had behaved poorly characterising her attitude as “aggressive and disingenuous.”
In those circumstances, Senior Judge Lush ordered that EY should bear her own costs rather than being able to recover them from CT’s estate.
This is of some note as the first reported case in which costs have been sought against the OPG. It is perhaps noteworthy that Senior Judge Lush – rightly – did not exclude the possibility that a costs order might be made against the OPG; on the facts of the case, it is no surprise that the application by EY failed.
The case is also of some interest for the approach adopted by Professor Jacoby to capacity, and the repeated references of a them which (Senior Judge Lush) “like Ravel’s Boléro, rises in a continuous crescendo,” namely CT’s need for disinterested advice in order to assist him in making capacitous decisions. This was very clearly a case where questions of capacity and influence were extremely closely entwined, and might, again, serve as a cautionary tale as we seek to move closer to the CRPD vision of supported decision-making. If we do get closer to such a model, identifying when support shades into coercion will become ever more important – and ever more subtle as an exercise.