Re P (Discharge of Party: Costs of Appeal)
Summary
In Re P (Discharge of Party: Costs of Appeal) [2021] EWCA Civ 992, the Court of Appeal was asked to consider an application for costs following the appellant's successful appeal in Re P (Discharge of Party). The underlying case related to the mother of P (who was the subject of proceedings) having been discharged as a party without an application being made to the court, notice given to the mother, or an opportunity for the mother to put forward arguments until a considerable period of time after the discharge had occurred.
The appellant proposed five reasons why her costs should be paid by the respondents (paragraph 2):
(a) Whilst the normal rule in welfare cases in the Court of Protection is that there should be no order as to costs, it was held by this Court in Cheshire West v P [2011] EWCA Civ 1333 that this does not apply to appeals from the Court of Protection which are governed by CPR Part 44. Under r.44.2(2), the general rule is that, if the court decides to make an order about costs, the unsuccessful party will be ordered to pay the costs of the successful party. That rule should have been followed in this case.
(b) As a result of the decision of the court below, the appellant was obliged to bring this appeal to secure fundamental rights. Although the decision to remove her as a party was taken by the judge without any prior application by any of the parties, it had been open to the respondents to propose a different order which would have protected P without infringing the appellant's fundamental rights.
(c) Furthermore, once the appellant had filed her appeal notice, it was open to the respondents to concede the appeal and/or propose a different order, having seen the way the appeal was put.
(d) Although the appellant was publicly funded, the appellant owed a duty to the Legal Aid Agency to seek to recover costs.
(e) This Court should have regard to the observations of Lord Hope R (on the application of E) v Governing Body of JFS & Anor [2009] UKSC 1 at [25], in which he emphasised the importance of costs orders for those who are publicly funded in the event that they are successful.
The court rejected the application (paragraph 3):
(a) As the appellant recognised in her submissions, whilst CPR 44.2 establishes the normal rule to be followed where a court decides to make a costs order, the court has a discretion under r.44.2(1) as to whether costs are payable and, under r.44.2(2), if it decides to make an order, to make a different order to that described by the general rule. Under r.44(3), in deciding what order (if any) to make about costs, the court must have regard to all the circumstances.
(b) In the Cheshire West case, Munby LJ stressed that he was not intending to lay down any principle, save that every case had to be decided by reference to what is now CPR 44.2. He also acknowledged that, whilst an appeal from the Court of Protection fell within CPR Part 44, the fact that it concerned a vulnerable adult was one of the circumstances to be taken into account under r.44.2(2) and that in some cases it may be one of the more important circumstances.
(c) In the present case, the vulnerability of P was manifestly a central feature of the proceedings and of the appeal. It was P's high degree of vulnerability that led the judge to take the step of discharging the appellant as a party. The protection of P was the focus of the proceedings and of all parties thereto.
(d) The decision to discharge the appellant as a party was made by the judge without application from any party at a hearing which had been listed to consider different applications by the respondents which were brought because of their concerns about threats to P's safety and welfare. In our judgment when allowing the appeal (paragraph 65), we concluded that the judge would have been fully entitled to make the order which the respondents were asking for.
(e) Although it would have been open to the respondents to oppose the judge's proposal at the hearing, and/or to concede the appeal, we concluded that it was not unreasonable of the respondents to seek to uphold the judge's order for this Court, given their responsibilities towards P and their concerns about her safety and welfare.
Comment
The judgment provides a pithy summary of some of the key principles of costs applications in health and welfare cases (still relatively rarely seen in reported decisions). The Court of Appeal emphasized that there was not a default position if the court considered it was appropriate to deviate from the general rule of no order as to costs, and costs applications would turn on the facts of the particular case (and the vulnerability of the subject of proceedings would likely always be of relevance). In this case, the Court of Appeal did not consider that the parties had been unreasonable in supporting the action of Hayden J to discharge mother. The respondents maintained in further proceedings before Lieven J, who, four days before this judgment, had made the same order as had Hayden J following an application being made on notice to the mother and the mother having an opportunity to put her case forward.
