Mental Capacity Case

AH v Hertfordshire Partnership NHS Foundation Trust

Peter Jackson J.
[2011] EWHC 276

Summary: The costs decision in this previously reported case which concerned plans to move a number of residents from an NHS campus facility has been handed down. The court ordered the statutory bodies involved to contribute to the costs incurred by the litigation friends of the residents involved, including in cases where the statutory bodies had agreed to consent orders that it was in the best interests of the residents not to be moved, and thus no substantive hearing had occurred.

Peter Jackson J reiterated the familiar principle that decisions to depart from the general rule that there should be no order for costs in welfare proceedings are fact-specific. In these cases, he found that 50% of the residents' costs should be paid by the statutory bodies to reflect the following features of the litigation:

  • There had been difficulties in getting information from the statutory bodies about their planning and about the financial circumstances of the residents.
  • The costs of the residents were increased by virtue of their having to act as Applicants in each set of proceedings.
  • The best interests assessments that had been carried out were inadequate.
  • There had been a lack of clarity about whether the campus facility was being closed, and a lack of effective communication and consultation about the proposal to move the residents.
  • The residents had succeeded in obtaining the outcome sought by their litigation friends, and accept the views of the experts were unreasonable.
  • No warning of a costs application is necessary when the party against whom costs are sought is a public body.
Comment: It would be dangerous to attempt to read across from this judgment to other cases, but the judgment is worth noting as an example of costs being ordered even where there is no bad faith or flagrant misconduct. The judgment should give pause for thought to litigants, whether individuals or public bodies, who seek to dispute the recommendations of jointly-instructed experts where the bulk of the evidence points in one direction.