Our previous blog here considers the recovery of costs in the Court of Protection. The rules that apply in the Court of Protection differ from the general rules in the Civil Courts where costs are generally awarded against the losing party. In the Court of Protection, however, cases are heard to consider the incapacitated Protected Party’s (P) best interests and therefore there can be no winners or losers.
The starting position for costs incurred during property and Finance proceedings in the Court of Protection is that costs will be met by the Protected Party. This allows parties to obtain legal representation to put forward their position as to what is in the best interests of the Protected Party and, regardless of the outcome, their costs will be met by the Protected Party, subject to the fixed costs and assessment rules mentioned below. This general position can be displaced in the event the Court of Protection finds a party’s conduct unreasonable and therefore, it would appear unjust for their costs to be met by the Protected Party. This will often be the case when the subject of proceedings relates to an Attorney’s or Deputy’s abuse of their position.
On the other hand, the starting position for costs incurred during Health and Welfare proceedings in the Court of Protection is that each party will bear their own costs. This means any party instigating proceedings or having an active involvement will be responsible for any legal costs they may occur. Again, this position can be displaced in the event the Court of Protection finds a party’s conduct unreasonable, albeit the threshold to displace this general rule is typically higher than that in comparison to proceedings concerning the Protected Party’s Property and Finances.
AA, Re (Costs) [2024] EWCOP 44
Facts
The recent case of North Central Auckland Integrated Care Board v AA (by his litigation friend, the Official Solicitor) and others considered an award of costs in Health and Welfare proceedings. This case initially concerned palliative care for AA, which was opposed by AA’s parents. By the time the application was substantively heard by the Court of Protection, there was only one viable option available and AA’s parents sought to hold the applicant accountable for the delay. Accordingly, they sought costs against the applicant due to an alleged delay in bringing proceedings. Costs were initially awarded in error as the Court of Protection was unaware the applicant opposed such an order. The matter of costs therefore returned to the Court of Protection on appeal by the applicant.
The Court of Protection was now required to consider the matter of costs in full. The Court of Protection considered the delay caused by the applicant, the party’s conduct, and the applicant’s role. It was held there was no unreasonable delay given that the applicant was not previously involved in administering AA’s care and further, the Court of Protection sought to accommodate the hearing as soon as practicable. Neither party’s conduct was considered to be unreasonable. It was therefore held that there would be no order as to costs and each party would be responsible for their own costs. Such a position confirms the general position when proceedings concern the Protected Party’s Health and Welfare.
Assessment
It is worth noting that when costs are awarded in the Court of Protection, they will be subject to the fixed costs rules or, detailed assessment. The fixed costs rules limit the costs that can be recovered and will generally only apply where costs are being met by the Protected Party and the Protected Party’s overall assets are below £16,000. All other costs orders will be subject to detailed assessment and will require a party’s costs to be considered by the Senior Courts Cost Officer, who will determine what a party is able to recover in respect of their costs.
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