High bar for costs order in Court of Protection Cases

West Hertfordshire Hospitals NHS Trust v AX (Rev1) [2023] EWCOP 11 is a case where an application for a costs order failed despite the court disapproving of the opposing party’s conduct.

The facts of the case are as follows. The patient in this case, AX, was 27 weeks pregnant when she started experiencing symptoms consistent with a manic episode, including a thought disorder, flight of ideas, and tangential thinking. She attended Accident and Emergency with abdominal pain on 12^th September 2022 and was subsequently referred to Mental Health Liaison Team due to what was considered as erratic behaviour. On 15^th September 2022, she was detained under s2 Mental Health Act 1983 and later transferred to the Mother & Baby unit, for which the trust in these proceedings was responsible. The estimated delivery date for her baby was 15^th November 2022.

Various meetings with professionals took place regarding AX’s care and there were concerns regarding AX’s capacity to make decisions about her labour so on 21^st October 2022 trust made an application to obtain authority for a degree of restraint which would amount to deprivation of AX’s liberty. An urgent hearing was sought on the basis that AX could go into labour at any minute. The patient was represented by her litigation friend, the Official Solicitor. Leading Counsel for the Official Solicitor sought an adjournment on the basis that no assessment of litigation capacity had been made and it was not apparent why an out of hours hearing was required, especially as there had been no opportunity to finish reading the papers, or for the Official Solicitor to speak with her client or any family members. The Judge accepted the Official Solicitor’s application to adjourn the application pending disclosure of recent psychiatric records and the case was subsequently listed for hearing on 28^th October 2022.  A no order for costs was made for the hearing on 21^st October 2022.

In the meantime, a further capacity assessment performed by Dr B on 27^th October 2022 concluded that AX had regained capacity so the trust sought to withdraw proceedings at the hearing on 28^th October 2022, subject to the Official Solicitor’s application for a costs order. The only issue that remained to be addressed was therefore costs.

The Official Solicitor appeared to make a strong case against the trust’s conduct in support of its application. The main points taken were:

• the trust’s application should have been made sooner and in line with the guidance in NHS Trust v FG[2014] EWCOP 30 allowing for a hearing in normal court hours
• there was no urgency to justify an out of hours hearing
• the evidence filed was incomplete and deficient with no assessment of capacity to litigate, no proper assessment of capacity to make decisions about labour and delivery, and no records after 22^nd September 2022 (including its own psychiatric records)
• the oral evidence given at the hearing on 21^st October 2022 did not make up for the deficiencies in the written evidence filed
• these deficiencies were compounded by the trust’s failure to ensure AX had been provided with a copy of her birth plan prior to the Official Solicitor’s request on 27^th October 2022, the day before the adjourned hearing, and to ensure AX had the chance to discuss that plan with clinical staff
• the trust’s conduct further aggravated the difficulties faced by the Official Solicitor and AX by its chaotic preparation for the case in the run up to the adjourned hearing, and in particular the events of 27^th October

The Official Solicitor also argued that there was simply no time to properly prepare for the hearing or even consider the application properly. The trust admitted that guidance in NHS Trust v FG was not followed but went on to say that the decision for the application was based upon clinical advice seeking to promote AX’s best interests, in good faith.

The Official Solicitor stated to the court that the award for costs was the only way for the court to express disapproval of a party’s conduct of an application such as this. The court wholly disagreed. It said that the making a costs order is not the only way a court can express its disapproval, it can instead be expressed in a judgment without a costs order.

The court considered the conduct, and acknowledged the prejudice suffered by the Official Solicitor and even agreed that the application should have been made in advance of the date of the eventual application. It also went on to say that had the guidance in the Practice Note concerning Appointment of the Official Solicitor been following, the trust may not have sought a substantive hearing out of hours on 21^st October 2022. The judge also said that the real prejudice is that there was no opportunity for Official Solicitor to properly meet AX and ascertain wishes. Despite acknowledging these deficiencies, the court stated that the threshold for a costs order was not met in this case and that a breach of guidance did not automatically justify a costs order against the applicant, something more would be needed, and this didn’t exist in this case therefore the application for costs failed.

This case is a useful guide when considering what constitutes as justification to depart from the general rule of no order as to costs[i] in Court of Protection matters. One of the key points to take from this case is that poor conduct does not automatically warrant a costs order, as the court may instead just record its views in the judgment.

The other key point to take away is that the bar is high to secure a costs order. A mere breach of guidance is not enough, there must be significant unreasonable conduct and good reason[ii] and even after proving this you may only obtain a partial costs order. What ‘significantly unreasonable conduct’ and ‘good reason’ means very much depends on the individual facts of the case.

Practical guidance

If you are seeking a costs order then assess whether the circumstances justify a departure from the general rule. Case law provides us with guidance and tells us that repeated breach of Court orders which results in unnecessary hearing(s)[i], blatant disregard for processes and obligation amounting to misconduct[ii], a completely ineffective and waste of Court time at a hearing[iii], a scarcely coherent, without merit, misconceived and vexatious application, may constitute as justification to depart.

On the other hand, if you want to avoid a costs order being made against you then here are some practical tips:

• Issue timely applications as late applications are to be avoided save in cases of genuine medical emergencies
• Follow the requirements for urgent hearings set out by Theis J, as she then was, in Sandwell & West Birmingham NHS Trust v CD[2014] EWCOP 23 [2014] COPLR 650 at [39], notwithstanding the revocation of Practice Direction 9E
• In the case of an urgent serious medical treatment application, contact the Trust/Official Solicitor early to notify it of the urgent application. In such a case, send an email marked in the subject line “URGENT: for the attention of a healthcare and welfare lawyer” to the healthcare and welfare inbox oswelfarereferrals@ospt.gov.uk”[iv]
• Ensure an assessment on litigation capacity is made before commencing proceedings
• Ensure any applications are with merit
• Do not breach court Orders
• Follow duties and rules, and plan well

[i] Re ND (Court of Protection: Costs and Declarations) [2020] EWCOP 42 [2021] 1 FLR 1091

[ii] G v E (Costs) [2010] EWHC 3385 (Fam)

[iii] North Somerset Council v LW [2014] EWCOP 3

[iv] See Practice Note concerning Appointment of the Official Solicitor in welfare proceedings and paragraph 82 of West Hertfordshire Hospitals NHS Trust v AX (Rev1) [2023] EWCOP 11