Judge: Senior Judge Lush
Citation:  COPLR Con Vol 1022
Summary: The judgment was given in unusual circumstances, in the context of an appeal by P (RC)’s niece, SC, against a costs order made in favour of the London Borough of Hackney following proceedings, very shortly after which RC died. However, as Senior Judge Lush made clear in his judgment, he heard the appeal by RC’s niece in significant part because he wished to give guidance as to whether the general rule in personal welfare proceedings necessarily applies to proceedings in which the applicant is asking the Court to direct the Public Guardian to cancel the registration of an LPA for health and welfare.
In broad terms, the proceedings, before DJ Marin, were on two tracks: one for cancellation of the registration of a health and welfare LPA in favour of SC, and the second for declarations and orders regarding RC’s future placement. An order was made in these terms following a hearing extending over three days in May 2009. LBH sought an order that SC pay its costs of the second and third days of the hearing; the charity Jewish Care (JC) (in whose care home RC resided) sought an order that SC pay the entirety of its costs. DJ Marin approached the question of costs on the basis that the proceedings relating to the cancellation of the LPA should be considered as if they were health and welfare proceedings, and hence that the general rule for such proceedings (rule 157) applied. Having regard as to SC’s conduct, DJ Marin ordered that she pay the costs of LBH of the second and third days of the hearing, and 50% of the costs of JC from the date that it was served with notice of the proceedings.
Prior to the matter coming before Senior Judge Lush on appeal, JC and SC reached an out of court settlement, such that the only issue before him regarding costs was whether DJ Marin’s order regarding the costs of LBH should be upheld.
Having conducted a review of the authorities, Senior Judge Lush confirmed that he had a residual jurisdiction to consider SC’s appeal on costs, notwithstanding the death of her aunt, but that her other appeals against orders made by DJ Marin fell away because the jurisdiction of the Court of Protection lapsed upon the death of RC.
Senior Judge Lush concluded that DJ Marin was wrong to conclude that, because the LPA was a personal welfare LPA, consideration of issues of costs in proceedings relating to it should be approached by reference to Rule 157 (i.e. the general rule in welfare proceedings, namely that there be no order as to costs). Senior Judge Lush held that “because the format, the procedures for both execution and registration, and the grounds of objection are identical in relation to both types of instrument, as a general rule, the incidence of costs in cases where there is an LPA for health and welfare should not necessarily differ from the general rule in property and affairs cases, subject of course to the provisions of rule 159, which allows the court to depart from the general rule if the circumstances so justify.”
Senior Judge Lush then went to explain why he thought the original decision on costs was unjust. He expressed concerns as to:
1. The fact that Hackney had not given any warning to SC that it might seek its costs. In the process, he expressed some disquiet with the reliance by Hackney on the case of Orchard v. South Eastern Electricity Board  2 W.L.R 102,  1 All E.R. 95, in which the Court of Appeal suggested that it is improper to threaten to seek an order for costs against someone in order to browbeat them into dropping a case or pursuing a particular line of argument. He held in this regard:
“[o]f course, the threat of an adverse costs order should never be used as a means of intimidation. However, if the London Borough of Hackney and Jewish Care genuinely believed that SC’s conduct was improper or unreasonable, and that it was likely to result in a waste of costs, it may very well have saved time if they had alerted her to the risk that there was a possibility that the judge could award costs against her.”
2. The fact that the judge below had not considered SC’s ability to pay the costs awarded against her, noting in this regard the guidance given in the case of Cathcart  1 Ch 549, at page 561, in which Lord Justice Lindley held as follows:
“The respective means of the parties and the amount of the costs cannot, in my opinion, be disregarded. If the Petitioner could well afford to pay the costs, and the alleged lunatic would be ruined if ordered to pay them, the Court would not, I apprehend, order him to pay them, whilst there might be no such reluctance if the reverse were the case. The Court ought to endeavour to do what is fair and just in each particular case. Even the amount of costs is not immaterial. Moreover, in considering these matters regard must be paid not only to the expenses incurred, but to the necessity for them, which will very often depend on the course taken by the Petitioner or by the alleged lunatic. Either party may by his conduct render an inquiry much more expensive than it might otherwise have been.”
3. The fact that he was not satisfied when awarding costs against SC, the judge fully considered the nature of the relationship between her and her aunt, and whether she was acting in RC’s best interests. Senior Judge Lush pointed again to Cathcart, at page 560, where Lord Justice Lindley made the following comments, in which he emphasised the importance of acting in good faith, bona fide, as well as in P’s best interests, in cases of this kind:
“The relation in which the Petitioner stands to the alleged lunatic and the Petitioner’s objects and conduct are the last matters to which I will refer. It is plain that these matters, although not relevant to the inquiry into the state of mind of the alleged lunatic, are very important in considering the question of costs. An unsuccessful inquiry promoted by a stranger for purposes of his own, perhaps mainly in the hope of getting costs, ought to be regarded very differently from an unsuccessful inquiry promoted, perhaps most reluctantly, by a husband or wife or some kind relative or intimate friend acting bona fide in the interest of the alleged lunatic and for the protection of himself and his property. Between these extremes there is room for many differences of degree; but it would be hopeless for the promoter of an inquiry which resulted in a verdict of sanity to ask the Court to order his costs to be paid by the alleged lunatic, unless there were reasonable grounds for the inquiry; that the inquiry was really desirable; that the Petitioner was under the circumstances a proper person to ask for it; and that he acted bona fide in the interest of the alleged lunatic.”
4. The fact that it appeared that the District Judge might have allowed the fact that SC was a litigant in person whose conduct was infuriating to sway him into considering that the case before him was exceptional when the reality was “SC is not untypical of many of the litigants in person who appear on a regular basis in health and welfare proceedings in the Court of Protection and, despite what District Judge Marin and Bryan McGuire QC have said about this being an exceptional case, it is not. It could almost be said that this aspect of the court’s jurisdiction was created to deal with situations of this kind, where a local authority, NHS Trust or private care home is experiencing problems with a particularly difficult and vociferous relative.”
Senior Judge Lush concluded his judgment as follows:
“Accordingly, the general rule (rule 157) should apply, and the court should only depart from the general rule where the circumstances so justify. Without being prescriptive, such circumstances would include conduct where the person against whom it is proposed to award costs is clearly acting in bad faith. Even then, there should be a carefully worded warning that costs could be awarded against them, and a consideration of their ability to pay. If one were to depart from rule 157 in all the cases involving litigants whom Mr Sinclair has described as “extreme product champions”, the court would be overwhelmed by satellite litigation on costs, enforcement orders, and committal proceedings.
I have an advantage over District Judge Marin. I can reflect on this case quietly and calmly, with the benefit of hindsight, and without the pressure and overwhelming sense of urgency with which he had to adjudicate at first instance. However, for the reasons given above, I consider that his decision to award costs against SC was partly wrong and partly unjust. Accordingly, I allow this appeal and set aside the original order insofar as it related to the London Borough of Hackney’s costs, and in its place I make no order for costs.”
Comment: Whilst it is perhaps not entirely clear from the face of the judgment, it is clear that the logic of Senior Judge Lush’s decision was that: (1) the general rule in disputes regarding LPAs is that the aspect of the dispute concerning the LPA should be approached on the basis that the general rule regarding costs is Rule 156 (i.e. that P should pay for such proceedings), rather than Rule 157; and (2) that, on the facts of this case, there was insufficient evidence to depart from that general rule (which does not provide for an objector’s costs to be paid) as regards the dispute regarding the LPA or from the general rule (Rule 157) regarding the remainder of the dispute, relating to P’s residence and contact arrangements.
In any event, the general guidance given by Senior Judge Lush is of assistance in clarifying the costs position regarding disputes concerning personal welfare LPAs, and also in making clear the circumstances under which the general rule in personal welfare proceedings other than those concerning LPAs will be displaced. The need for giving a clear costs warning is one that is particularly significant, as is the consideration that needs to be given both to the ability of the person in question to pay and to their motives in so acting: it is clear that the latitude that will be given to litigants in person (at least) is likely to continue to be significantly greater in Court of Protection proceedings than before the remainder of the civil courts.