The Public Guardian v DJN

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.

47. It was abundantly clear at the outset that the real issue was JN's capacity at the time of the sale of his property.
48. Accordingly, before commencing proceedings the Public Guardian should have reviewed the capacity evidence. In my judgment, had he done so with care, he would have concluded that it was weak. Indeed, even the Special Visitor's report was guarded.
49. Nonetheless, the Public Guardian was content to commence proceedings solely on the basis of the desk-top evaluation of the case carried out by an investigator. I am clear that this led to proceedings being issued which went beyond what was necessary and reasonable.
50. The Public Guardian should have appreciated the obvious deficiencies in the capacity evidence. He could have invited DN to agree to a joint expert being instructed to consider the matter before issuing proceedings so that he could consider his position carefully or he could have issued proceedings and asked the court to adjudicate only on the issue of capacity. Instead, he embarked upon litigation which sought a range of reliefs and orders.
51. It is particularly concerning that the Public Guardian sought without notice orders of a very serious nature, namely the suspension of the LPA and the appointment of an interim deputy.
52. This approach completely ignored the fact the DN was co-operating with the Public Guardian and had offered to place monies in an account to cover all care costs.
53. It is not surprising that interim orders were made on paper given that the tenor of the application and evidence in support suggested serious wrong-doing on the part of DN that required a response from the court. This did not though reflect the reality.
54. At the very least, the application for interim orders should have been on notice to DN. Had this happened, the court would have had a fuller picture and the case could have been directed on a path to address the real issues that arose. My view is that the application for interim orders should never have been made; that it was reflects the lack of consideration given to this case by the Public Guardian.
55. What flowed from the interim orders was acrimonious litigation with DN defending every issue raised against him and the appointment of an interim deputy which caused further acrimony and litigation costs, as well as achieving next to nothing for JN at a high price for which he ultimately had to pay.
56. The Public Guardian adopted what seemed to be a standard approach to litigation based on his approach to other cases. This was a serious failure especially when rule 1.4 COPR 2017 expects litigants to comply with the overriding objective. This obligation applies equally to the Public Guardian.
57. His approach also seemed strange in the context of JN having told Dr C that he was upset about the investigation of DN and the history of joint financial dealings between JN and DN at times when JN had capacity.
58. This all amounts in my judgment to a good reason to depart from the normal costs order especially having regard to rules 19.5(2)(a) to (c). I accept Ms Galley's criticisms in this regard.

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.