Re A and B (Costs and Delay)



Judge: Peter Jackson J

Citation: [2014] EWCOP 48

This brief judgment from Peter Jackson J highlights concerns about the cost and duration of Court of Protection proceedings, based on two anonymised cases, the detailed facts of which are not given but in which both the Official Solicitor acted as litigation friend for the “P”s concerned.

Case A lasted for 18 months and Case B for five years, each incurring overall costs at a rate of around £9,000 per month.  The judge identifies two particular problems which lead to cases taking too long and costing too much: ‘the search for the ideal solution, leading to imperfect but decent outcomes being rejected’ and ‘a developing practice…of addressing every conceivable legal or factual issue, rather than concentrating on the issues that really need to be resolved’.

The judge also noted that:

“16. There is also a tendency for professional co-operation to be dissipated in litigation. This was epitomised in Case A, where the litigation friend’s submission focussed heavily on alleged shortcomings by the local authority, even to the extent that it was accompanied by a dense document entitled “Chronology of Faults”. But despite this, the author had no alternative solution to offer. The role of the litigation friend in representing P’s interests is not merely a passive one, discharged by critiquing other peoples’ efforts. Where he considers it in his client’s interest, he is entitled to research and present any realistic alternatives.”

The judge concludes:

“18.  The main responsibility for this situation and its solution must lie with the court, which has the power to control its proceedings. The purpose of this judgment is to express the view that the case management provisions in the Court of Protection Rules have proved inadequate on their own to secure the necessary changes in practice. While cases about children and cases about incapacitated adults have differences, their similarities are also obvious. There is a clear procedural analogy to be drawn between many welfare proceedings in the Court of Protection and proceedings under the Children Act. As a result of the Public Law Outline, robust case management, use of experts only where necessary, judicial continuity, and a statutory time‐limit, the length of care cases has halved in two years. …

19.  I therefore believe that the time has come to introduce the same disciplines in the Court of Protection as now apply in the Family Court.’

Comment

No doubt further consideration will be given (above all by the Ad Hoc Rules Committee, sitting at the moment) to the proposal advanced by the judge as the number of Court of Protection cases continues to increase.

We would echo the need for greater focus and discipline in welfare cases, but we would wish any steps towards the implementation of (in particular) the PLO in the COP only to be taken after careful consideration of whether the COP has the resources to enable the necessary degree of judicial continuity.    The resources are only just available to ensure that the family courts are able to match the demands placed upon practitioners under the PLO; at present, we very much doubt whether they are properly present to allow the COP to match any equivalent demands.

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