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T & Anor v L & Ors (Inherent Jurisdiction : Costs) [2021] EWHC 2147 (Fam)

Cobb J considers the principles to be applied when determining the issues of costs in cases involving the inherent jurisdiction of the High Court when considering the welfare of an adult whose capacity was in issue.


The applicants were attorneys under registered lasting powers of attorney granted by K who was a former work colleague. In 2020 they were informed that K had applied to revoke the LPA's and substitute new LPAs appointing members of his family (the 1st and 2nd Respondent). K had also executed a new will making significant new bequests to his carer B and the 1st and 2nd Respondents. The applicants were also concerned that K's capacity was failing was being improperly influenced and B was preventing K have any direct or indirect contact with friends.

After correspondence and a round table meeting they issued the application on 18 January 2021 seeking

i) directions for the investigation by the court of the revocation of their LPAs,

ii) suspension of the process of revocation of new LPAs which had been purportedly entered into in October 2020,

iii) investigation into the validity of a new will drafted in November 2020, and

iv) the replacement of K's carer, Ms B, and the installation of a new carer / care package.

K was joined as a party and represented by the Official Solicitor.

There were 3 assessments of capacity. The first was completed after an order to prevent security guards who had been engaged by the 1st and 2 respondents or at least with their support from interfering with a visit by K's lawyers and the expert.

The second was undertaken by an expert instructed by the 1st and 2nd Respondent without the agreement or even knowledge of the other parties.

The third was a joint visit by the 2 experts.

It was eventually agreed that K lacked testamentary capacity and capacity to make decisions about his property and financial affairs and his welfare. It was also agreed that none of the parties should act under LPAs and a professional deputy should be appointed in respect of K's property and affairs and another deputy should be appointed in relation to welfare. B had in the meantime resigned as a carer and been replaced by an agency. A statutory will was to be executed. All of these were to be subject to orders in the Court of Protection.

The 1st and 2nd Respondents sought for their costs (£215000) to be paid from K's funds. The Applicants agreed to bear their own costs (£15000) The Official Solicitor was to recoup her costs (£140000) from K's estate and she opposed the 1st and 2nd Respondent's application.

Cobb J concluded that the applicable costs rules were those under the CPR and not the FPR for the reasons he had set out in Redcar & Cleveland v PR [2019] EWHC 2800 (Fam) and summarised the principles to be applied at para 25.

i) The Senior Courts Act 1981 and the CPR 1998 confirm that he had a wide discretion in relation to costs;

ii) Proceedings brought under the inherent jurisdiction relating to a vulnerable adult have many of the same essentially welfare-oriented characteristics of proceedings under the inherent jurisdiction relating to minors (see McFarlane LJ in DL v A Local Authority [2012] EWCA Civ at [61], and see also Wall LJ in Westminster City Council v C [2008] EWCA Civ 198; [2009] 2 WLR 185 at [54]: "I am in no doubt at all that the inherent jurisdiction of the High Court to protect the welfare of incapable adults, confirmed in this court in Re F (Adult: Court's Jurisdictions) [2001] Fam 38 survives, albeit that it is now reinforced by the provisions of the Mental Capacity Act 2005 (the 2005 Act)"). Therefore, although the CPR 1998 applies to such proceedings, the costs principles which apply in family proceedings are likely to be highly relevant in this regard;

iii) In family proceedings where the welfare of a minor is concerned, it is usual to make no order as to costs;

iv) One of the underlying philosophies of this rule is that the proceedings under the inherent jurisdiction in relation to minors or vulnerable adults are significantly essentially inquisitorial in character;

v) Thus, it is no particular surprise that the 'ordinary rule' of no order as to costs in cases under the inherent jurisdiction concerning a vulnerable adult appears to have been assumed by Peter Jackson J in NHS Trust v D at [14], and not apparently subsequently doubted;

vi) It is significant that that rule 44.2(2) opens with the words "If the court decides to make an order…" (emphasis by underlining/italics added) which stresses that the court may well consider not making an order at all.

Cobb J concluded that all the parties should bear their own costs, for reasons he set out at paras 29 35.

The judgment does not indicate whether the court was invited to compare with the situation in the Court of Protection where the rules distinguish between personal welfare and property and financial affairs. For proceedings or that part of the proceedings which relate to personal welfare the general rule is that there will be no order as to costs) but for property and affairs the general rule is the general rule is that the costs of the proceedings or of that part of the proceedings that concerns P's property and affairs, shall be paid by P or charged to his estate. (COPR r156-157)

Case summary by Nicholas O'Brien, Barrister, Coram Chambers

For full case, please see BAILII