Judge: Peter Jackson J.
Citation:  EWHC 3524
Summary: This case is a further judgment on costs from Peter Jackson J, in litigation related to the previously reported case of AH v Hertfordshire Partnership NHS Foundation Trust  EWHC 352.
In this case, costs applications had been made by the Official Solicitor as litigation friend to a number of residents of an NHS campus facility who had been the subject of best interests proceedings similar to those in the AH case. The cases other than AH all settled without a hearing as the statutory bodies involved agreed not to pursue their plans to move the residents into community placements. Costs were awarded in favour of the residents against the statutory bodies in varying proportions, and the judge stated:
“The conclusion I have reached in this case represents a partial departure from the general rule that there should be no order for costs. It is a case where there has been no bad faith or flagrant misconduct, but there has been substandard practice and a failure by the public bodies to recognise the weakness of their own cases and the strength of the cases against them. In such circumstances they cannot invoke Rule 157 at the expense of others.”
Comment: As ever, it would be dangerous to try to extract from a fact-specific decision on costs any general principles. However, the judge’s comment that the statutory bodies had failed to recognise the strength of the case against them is of some interest, since that is, in the authors’ experience, by no means an uncommon feature of litigation in the Court of Protection – expert opinions are often disputed by one or more parties and substantive hearings held where the outcome is predictable. In many cases, the intransigent party is an impecunious litigant in person or is publicly-funded, and so costs orders are rarely sought or made.