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SHC NHS Dorset Clinical Commissioning Group v LB & Anor [2018] EWCOP 7

Decision of Baker J declining to make a costs order in favour of the Official solicitor where the applicant NHS Trust had withdrawn applications for test case declarations.

Background
NHS Dorset Clinical Commissioning Group ("the applicant") launched four test cases seeking clarification of the law concerning the deprivation of liberty of mentally incapacitated adults. Those cases followed the decision of the Supreme Court in Cheshire West and Chester and Council v P and another; Surrey County Council v P and Others [2014] UKSC 19 and the identification of the 'acid test' for deprivation of liberty. The applicant sought to clarify the situation in respect of persons continuing to live in their own home, but who were subject to NHS care plans which – on one interpretation – might render them deprived of their liberty [§1 to 4].

In the event, the applicant withdrew the applications in each respect for a number of reasons, not least of which was a reconsideration of its position upon reading the alternative legal analysis of the law prepared by the Official Solicitor ("OS") on behalf of two of the respondents [§5 to 6]. The OS therefore applied for its costs, having run up c.£30,000 of costs responding to the applications [§7].

The law
The general rule was that there would be no order for costs where the proceedings concern a person's personal welfare (rule 157 Court of Protection Rules 2007). Departure from that general rule was permitted in certain circumstances, one of which was with reference to the conduct of the parties (rule 159) [§8].

The judge referenced the leading authorities on costs in the Court of Protection: his own decision in G v E (Costs) [2010] EWHC 3385 (Fam), the decision of the Court of Appeal in Manchester City Council v G [2011] EWCA Civ 939, and Peter Jackson J in Hillingdon LBC v Neary [2011] EWHC 3522 (COP). These cases established nothing other than examples of the manner in which the court had exercised its powers to make a costs order, as opposed to offering guidance [§9 to 10].

The judge did not consider this to be an appropriate case for a costs order, most notably for the following reasons [§15]: (1) the application primarily concerned a series of welfare cases in which an important preliminary point had arisen; (2) the law concerning deprivation of liberty was in a state of some uncertainty; (3) it was therefore understandable for the applicant to seek guidance and clarity on the impact of the acid test' on cases within its care and control.

Summary by Thomas Dance, barrister, 1 King's Bench Walk
________________________________

This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated persons and members of their families must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.  Failure to do so will be a contempt of court.

Case No: 13023375 and 11784281
Neutral Citation Number: [2018] EWCOP 7

IN THE COURT OF PROTECTION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28 March 2018


Before :

THE HONOURABLE MR JUSTICE BAKER
- - - - - - - - - - - - - - - - - - - - -

IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF LB
AND IN THE MATTER OF SHC


Between :

NHS DORSET CLINICAL COMMISSIONING GROUP
 Applicant
- and - 
LB (by her litigation friend, the Official Solicitor (1)
SHC (by his litigation friend, the Official Solicitor (2)
 Respondents
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Paul Bowen QC (instructed by DAC Beachcroft LLP) for the Applicant
Alex Ruck Keene
(instructed by Irwin Mitchell LLP) for the Respondents 
- - - - - - - - - - - - - - - - - - - -

Judgment
MR JUSTICE BAKER :

1. In 2017, the NHS Dorset Clinical Commissioning Group launched what were intended to be four test cases seeking clarification of the law concerning the deprivation of liberty of mentally capacitated adults. For various reasons, however, all of those applications, or in some cases that part of the application relating to the deprivation of liberty issue, were withdrawn, but not before the Official Solicitor had agreed to act for two of the respondents with the benefit of publicly-funded certificates and had incurred some legal costs. Subsequently, the Official Solicitor has applied for all or part of those costs to be paid by the applicant. This judgment sets out my decision on that costs application and the reasons for that decision.

2. The four cases all involved mentally incapacitated adults living at home and being supported under care plans devised and administered by the applicant. Following the decision of the Supreme Court in Cheshire West and Chester and Council v P and another; Surrey County Council v P and Others [2014] UKSC 19, and notwithstanding the identification in that case of the "acid test" for determining whether a person is being deprived of their liberty, namely whether he or she is under continuous supervision and control and is not free to leave, there remains considerable uncertainty as to the precise circumstances in which many incapacitated adults will be held to be deprived of their liberty. The applicant therefore decided to see clarification in respect of one significant group of people, namely those who were living at home but subject to care plans which, one on interpretation, satisfied the "acid test". To that end, applications to the Court of Protection were made in respect of four individuals, and in each case the applicant sought, by way of a preliminary issue, a declaration in respect of the issue of deprivation of liberty.

3. The issues in respect of which declarations were sought by the applicant were as follows:

i) Whether, for the purposes of Article 5 of ECHR and s64(5) of the  Mental Capacity Act 2005, P was deprived of his/her liberty if s/he is not free to leave and is subject to continuous supervision and control but:

a) the restrictions to which he/she is subject are imposed in his/her own home (whether by family members or by paid carers) and;

b) the restrictions are necessary and proportionate for the purpose of providing P with care;

ii) in any event, whether responsibility for any deprivation of liberty in P's own home is to be imputed to the applicant solely by virtue of the fact that it provides NHS continuing care funding for P's care.

In each case the applicant sought a declaration that the respondent was not being deprived of their liberty. The applications were supported by detailed grounds drafted by leading counsel.

4. It was plain that to some extent the issues raised by the applications traversed ground that had not been explored in the Cheshire West case. It was asserted by the applicant that the issues affected a large number of individuals across the country and that, within its own area, there were over 100 other cases which would be affected by the decision and which would require judicial authorisation for a deprivation of liberty if the declarations sought in the case were refused. For that reason, I agreed to consider the matters raised as a preliminary issue and case management directions were duly given, including inviting the Official Solicitor to act as litigation friend for the four respondents.

5. In the event, the Official Solicitor declined to accept the invitation in respect of two of the respondents who, by reason of their means, did not qualify for public funding. As I understand the Official Solicitor's position, it was not considered appropriate to utilise the respondents' own funds to support a test case. It was therefore agreed that the cases regarding those two respondents would be stayed. That left two remaining respondents who qualified for public funding. Plainly, any test case should, as far as possible, cover a spectrum of factual circumstances which might impinge upon the decision as to whether or not a declaration should be granted. At that point, however, it was considered that the factual matrices of the two remaining cases would be sufficient for that purpose.

6. In accordance with case management directions, the Official Solicitor prepared a written response prepared by counsel in which he put forward an alternative legal analysis to that advanced on behalf of the applicant. Meanwhile, discussions took place between the parties. The applicant's solicitors then filed an application seeking permission to withdraw the application for declarations and instead sought consequential directions in all four cases. The grounds on which permission to withdraw was sought were threefold:

(1) the applicant had reconsidered its position in the light of the Official Solicitor's analysis;

(2) difficulties and delays in SHC's case meant that only one of the original four test cases - LB - was now able to proceed to a hearing on the preliminary issues, and as a result the practical application of any decision to future cases may be very limited in scope;

(3) the recent publication by the Law Commission of its report on Mental Capacity and Deprivation of Liberty (Law Comm 372), which includes recommendations for reforms designed to obviate the need for an application to the Court of Protection in the vast majority of cases of alleged deprivation of liberty, whilst not removing entirely the need for the Court to consider the issue raised in the test cases, reduced the justification for those cases and also, it was conceded, reduced the strength of the applicant's argument that the circumstances of the four individuals did not amount to a deprivation of liberty.

7. The effect of the proposed withdrawal was that the applicant no longer sought to argue that the respondents were not being deprived of their liberty. In the case of one of the publicly-funded respondents, LB, the applicant simply sought an order approving the care plan and authorising the deprivation of her liberty. In the case of the second publicly-funded respondent, SHC, in which there were ongoing issues about the merits of the care plan, and also in the two stayed proceedings in respect of the other two respondents, the applicant sought an order transferring the proceedings to a district judge. I duly made orders in those terms, but at the request of the Official Solicitor I reserved the question of costs and gave directions for the filing of written submissions on that issue. Subsequently, the Official Solicitor has filed submissions seeking all of his costs in the case of LB and half his costs in the case of SHC, to be the subject of a detailed assessment if not agreed. The Official Solicitor's costs in each case are put at approximately £15,000.

8. The rules concerning costs in the Court of Protection are set out in Part 19 of the Court of Protection Rules 2007. Rules 156 to 158 provide general rules in respect of proceedings concerning property and affairs and personal welfare. Rule 157 provides:

"Where the proceedings concern P's personal welfare the general rule is that there will be no order as to the costs of the proceedings or that part of the proceedings that concerns P's personal welfare."

Rule 159, headed "Departing from the general rule", provides (so far as relevant to this application):

"(1) The court may depart from rules 156 to 158 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 acceded on part of his case, even if he has not been 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 issue;

(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 his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response; and

(e) any failure by a party to comply with a rule, practice direction or court order."

9. In G v E (Costs) [2010]  EWHC 3385 (Fam), at paragraph 40, I stated:

"Of course it is right that the Court should follow the general rule where appropriate. Parties should be free to bring personal welfare issues to the Court of Protection without fear of a costs sanction. Local authorities and others who carry out their work professionally have no reason to fear that a costs order will be made. The submission that local authorities will be discouraged from making applications to the Court of Protection if a costs order is made in this case is a thoroughly bad argument. The opposite is, in fact, the truth. It is only local authorities who break the law, or who are guilty of misconduct that falls within the meaning of rule 159, that have reason to fear a costs order. Local authorities who do their job properly and abide by the law have nothing to fear. In particular, the Court of Protection recognises that professional work in this very difficult field often involves very difficult judgments and decisions. The Court is not going to impose a costs burden on a local authority simply because hindsight demonstrates that it got those judgments wrong."

10. This observation was approved by the Court of Appeal in dismissing an appeal against the costs order I made in that case (see Manchester City Council v G and others [2011] EWCA Civ 939). These cases were amongst those reviewed by Peter Jackson J (as he then was) when considering costs in Hillingdon LBC v Neary [2011] EWHC 3522 (COP), which led him to make this observation:

"These decisions do not purport to give guidance over and above the words of the Rules themselves – had such guidance been needed the Court of Appeal would no doubt have given it in Manchester City Council v G. Where there is a general rule from which one can depart where the circumstances justify, it adds nothing definitional to describe a case as exceptional or atypical. Instead, the decisions represent useful examples of the manner in which the court has exercised its powers."

11. On behalf of the Official Solicitor, Mr Ruck Keene submits that this case should not be seen as typical personal welfare proceedings, but rather as more akin to a civil claim. As a matter of fact, the Official Solicitor has succeeded in his argument. Although the applicant's change of stance was welcome, it only came after considerable effort has been expended on behalf the Official Solicitor and at considerable cost to the Legal Aid Agency.

12. When considering the applicant's conduct under rule 159 (1)(a), Mr Ruck Keene contends that the circumstances which rendered three of the four cases unsuitable for inclusion within the overall test case should have been identified at the outset. He also argues that it would have been possible for the applicant to have funded either or both of the cases which were not eligible for public funding. Alternatively, it might still have been possible to proceed with the application on the basis of the LB case alone which would have been sufficient for the court to lay down general propositions of law. As for the third ground on which the applicant sought permission to withdraw the case, Mr Ruck Keene points out that the Law Commission's report was published before the case management hearing and he therefore submits that the applicant should have appreciated that the justification for a test case was thereby reduced before the Official Solicitor incurred the cost of preparing his response to the application.

13. In reply, it is submitted on behalf of the applicant that there is no benefit to the Official Solicitor from any costs order which this court may make because, as the two respondents whom he represents have a benefit of legal aid certificates, the costs will be borne by the public purse whatever order is made. This argument carries no weight with this court. The fact that a party who is seeking a costs order against another party has a benefit of a legal aid certificate is not a reason for refusing a costs order. The Legal Aid Agency's funds are limited and a party who has the benefit of a public funding certificate is entitled, when seeking a costs order, to be treated in exactly the same way as a party who does not have the benefit of such a certificate.

14. The appellant is on much stronger ground on its further submissions. It is submitted that there were good public interest reasons for bringing this test case, given the uncertainty that exists concerning the application of the "acid test" set out in the Cheshire West decision. It is submitted that, of the three grounds for seeking permission to withdraw the application, it was the second that carried greatest weight, in that there was not a sufficiently broad range of facts to give the applicant sufficient guidance to the 100+ incapacitated adults for whom it is responsible for providing health care services at home. Due to budgetary constraints, it was not possible for the applicant to pay the costs of the other respondents who did not qualify for public funding. In all the circumstances, it is submitted that the Official Solicitor has not demonstrated sufficient reason for departing from the general rule in rule 157.

Conclusion

15. I do not consider this is an appropriate case for an order for costs against the applicant, for the following reasons:

(1) I do not accept the suggestion that this was not a typical welfare case. The application concerned a series of welfare cases in which an important preliminary issue arose on a point of law.

(2) As is widely recognised, the law concerning deprivation of liberty under the Mental Capacity Act is in a state of some uncertainty. That is why it has been the subject of a review by the Law Commission whose final report contains recommendations for substantial reform. The government has now accepted the report and the majority of its recommendations, and acknowledged that the current Deprivation of Liberty Safeguards should be replaced "as a matter of pressing urgency" (see government response 14 March 2018).

(3) It was in my judgment understandable that the applicant sought guidance on the issue of the impact of the "acid test" on cases involving incapacitated adults living at home, given the large number of individuals in those circumstances for whom it is responsible. In the words of rule 159(2)(b), it was reasonable for the applicant to raise and pursue this issue.

(4) Given the constraints under which all public bodies operate, the applicant was entirely justified in keeping under review the question of whether to pursue the case. Indeed, it would have been remiss if it had not done so. The fact that the applicant decided to abort the proceedings was a reasonable decision. To use the words in rule 159(2)(b) again, it was reasonable for the applicant to decide not to contest the issue in the light of developments in the litigation as described above.

(5) Although it is arguable that the difficulties in the individual cases could have been anticipated, I do not think that the applicant's failure to do so at an earlier stage could be described as litigation conduct of the sort to justify departing from the general rule.

(6) Although my comments in G v E (Costs) above were made in a different context, they do have some relevance here. Professionals working in this field often face difficult judgements and decisions. The applicant made the decision to ask the court to consider the preliminary issue which, as Mr Ruck Keene fairly conceded, involved propositions of general and considerable importance. Subsequently, however, in the light of developments within the cases, the applicant decided not to pursue the issue. In all the circumstances, I do not consider that its decision-making and overall conduct justifies a departure from the general rule as to costs.

16. Accordingly, there will be no order as to costs in these proceedings, save for a detailed assessment of the respondents' publicly funded costs.