Redcar & Cleveland Borough Council v PR (No 2)

Judge: High Court (Cobb J)

Citation: [2019] EWHC 2800 (Fam)

Summary

This is the costs judgment arising from the substantive judgment in Redcar & Cleveland Borough Council v PR & Ors [2019] EWHC 2305, concerned with a 32 year old woman (PR) who had been affected by mental health problems which had resulted in admission to hospital as a voluntary patient.  During her admission she made allegations against one of her parents and was extremely anxious about returning to live with them (to the point of threatening to take her own life).

When she was ready to be discharged, the local authority considered that it was required to safeguard her by applying to the High Court for orders under the inherent jurisdiction preventing PR from returning to live with her parents.

Interim orders were granted, initially without notice, and were kept in place for around 4 weeks.  Ultimately, PR decided she did not want to return to live with her parents, and they in turn agreed to have limited contact with her and not to try to persuade her to return home, and the inherent jurisdiction orders were discharged.

PRs parents sought their costs of the proceedings from the local authority. They argued that the proceedings were unnecessary and expensive and the local authority should have canvassed with them the possibility of either an undertaking or entering into a written agreement as a pre-action step before launching the application.

The first question was as to the rules governing costs.  Cobb J held that:

1. As proceedings under the inherent jurisdiction concerning an adult are not family proceedings within the definition set out at s.32 Matrimonial and Family Proceedings Act 1984, the rules that are to be applied by the court are the Civil Procedure Rules (CPR).
2. Accordingly the rule to be applied by the court when determining the application is CPR 44.1 and 44.2 which gives the court a discretion as to whether costs are payable by one party to another, and if so, the amount of those costs. Cobb J also noted the general rule that the unsuccessful party will be ordered to pay the costs of the successful party, although the court may of course “make a different order” (rule 44.2).
3. CPR2(4)/(5)) requires the court to have regard to all the circumstances, including (but not limited to) the conduct of all the parties and whether a party has succeeded on part of its case, even if that party has not been wholly successful.

Turning to the substance of the application, Cobb J reminded himself that at the time of the application in March 2019:

1. PR had recently disclosed aspects of her home life with her parents which gave the professional safeguarding and care agencies considerable concern about her future well-being should she return there;
2. There was a suggestion in the documents that parental influence over her was disabling her from making true choices. At that time, PR was threatening to end her life if she did not receive protection;
3. PR appeared to be a vulnerable person because of her range of mental health difficulties, and she was believed to be susceptible to coercive or controlling influence at home;
4. There was sufficient evidence that PR was confused in her thinking about her immediate future and/or was possibly being coerced and thus unable to make a decision of her own free-will; she was also suffering from a possible mental disorder;
5. After a period of time however the proceedings became “counter-productive” as PR has started to withdraw her co-operation from the programs and therapies designed to assist her, as she was worried that information she shared confidentially in the sessions and programs would ultimately be disclosed to the court;
6. It was PR’s case that the Local Authority should have used other (statutory) remedies against her parents (instead of using the inherent jurisdiction); it was not her case that proceedings should not have been brought to regulate the behaviour of her parents.

Cobb J held that there had been no obviously ‘successful’ party. Thus, there was no easy application of the ‘general rule’ (i.e. “that the unsuccessful party will be ordered to pay the costs of the successful party”).  He further held that on the information available to the local authority at the outset it was reasonable for them to conclude that if they notified PR’s parents of the intention to apply for an order this could have exposed PR to undue or inappropriate pressure from them.  He further noted that: (1) the situation developed quickly and was an emergency; (2) PR was so distressed she was at risk of suicide; (3) once the proceedings were underway the local authority reacted to the evolving evidence and modified their case.  Accordingly, he concluded, it was not unreasonable for the Local Authority to approach the court for protective orders, rather than attempting to obtain voluntary agreements for the parents to the safeguarding regime which they wished to create for PR. Cobb J therefore made no order for costs.

Comment

Cobb J was undoubtedly right that the CPR applies in a case of this sort. This is to be compared with a case concerning a child where the court is being asked to exercise the inherent jurisdiction. Those cases are family proceedings to which the Family Procedure Rules apply, and the starting position is that there will be no order for costs.  The same rule also applies in relation to welfare proceedings before the Court of Protection.  Cobb J was also right to highlight that the CPR is not a comfortable fit costs-wise for cases which, substantively, bear a strong resemblance to welfare proceedings before the Court of Protection.   They are equally an uncomfortable fit in terms of the other aspects of these proceedings, the CPR being (at root) designed to address the resolution of adversarial civil proceedings, and the FPR/COPR being designed to enable the inquisitorial determination of the position of the subject matter child/adult.  Even if it is not possible to introduce specific provisions within the CPR to address (e.g.) the evidential obligations upon parties in such inherent jurisdictional proceedings, it is to be hoped that if the recent explosion in the case-law in this area continues unabated that a Practice Direction can be issued to address such matters.

On the facts of the case, the judgment will no doubt be extremely welcome to public bodies considering approaching the court to invoke the inherent jurisdiction. Given that the large majority of the cases in which the court is being asked to exercise its powers pursuant to the inherent jurisdiction arise because someone is being unduly influenced or coerced, the scope for trying to come to agreements with the alleged perpetrator of the coercion/influence so as to avoid litigation without putting the subject matter of proceedings at risk, is likely to be limited.

COP jurisdiction and powers - Interface with inherent jurisdiction, COP jurisdiction and powers 23rd October 2019