Judge: HHJ Marin
Citation:  EWCOP 62
In this case P executed an LPA and subsequently became incapacitous. The OPG became concerned about the actions of the attorney and also about whether P had capacity to execute the LPA and so issued proceedings to revoke the LPA on the grounds that P had lacked capacity to grant it and on the grounds of the attorney’s alleged misbehavior. At the same time the OPG sought and obtained interim without notice orders suspending the operation of the LPA and appointing an interim deputy.
The attorney disputed the application on all grounds and, after a 2 day hearing, he was vindicated and the application dismissed and the interim orders discharged. The attorney had, however, incurred £82,000 in costs and the question arise as to who should pay.
The usual rule in property and affairs is, of course that P’s estate pays. Rule 19.2 of the COPR 2017 sets out the general rule for costs in cases relating to property and affairs, namely:
19.2 Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings, or of that part of the proceedings that concerns P’s property and affairs, shall be paid by P or charged to P’s estate.
Rule 19.5 provides that:
(1) The court may depart from rules 19.2 to 19.4 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances including –
(a) the conduct of the parties;
(b) whether a party has succeeded on part of that party’s case, even if not wholly successful; and
(c) the role of any public body involved in the proceedings.
(2) The conduct of the parties includes –
(a) conduct before, as well as during, the proceedings;
(b) whether it was reasonable for a party to raise, pursue or contest a particular matter;
(c) the manner in which a party has made or responded to an application or a particular issue;
(d) whether a party who has succeeded in that party’s application or response to an application, in whole or in part, exaggerated any matter contained in the application or response; and
(e) any failure by a party to comply with a rule, practice direction or court order.
(3) Without prejudice to rules 19.2 to 19.4 and the foregoing provisions of this rule, the court may permit a party to recover their fixed costs in accordance with the relevant practice direction.
In this case, the court ordered that the OPG should bear its own costs and 50% of the attorney’s costs. There were a number of reasons for this, summarized at paragraphs 47-58 of the judgment as follows.
Orders for costs, especially against public bodies whose task it is to investigate and protect the interests of those lacking capacity, are unusual but this case illustrates the type of behaviour that might give rise to such an order. On a procedural point, the interim orders (which were of draconian effect) were made without notice and without a return date for their reconsideration (although there was a liberty to apply). In other jurisdictions in such circumstances a return date is mandatory.