COSTS IN THE COURT OF PROTECTION: “ARROGANCE” AND “PETULANCE” LEADS TO AN AWARD OF COSTS AGAINST A LOCAL AUTHORITY

In London Borough of Lambeth v MCS & Anor [2018] EWCOP 20 Mr Justice Newton did not follow the normal practice in Court of Protection cases. He ordered costs to be paid against the Local Authority and the Lambeth Commissioning Group.

THE CASE

The First Respondent was a 55 year old women from Columbia. She collapsed in the street in the UK four years previously (in 2014). She had cognitive problems thereafter.  She was transferred to hospital and remained thereafter. She wanted to return to Columbia.  She could not speak English. The applicant local authority applied to the Court of Protection.

THE JUDGMENT ON COSTS

The judge reviewed the history of the matter.  He noted that the first respondent had been ready to be moved several years before proceedings were even issued.

1. It is obvious that the Court is deeply critical of the manner in which this case was handled both before and after the institution of proceedings. It is further troubling that even within the written submissions are many misconceived assertions or contentions as to fact. The proceedings were instigated by P’s RPR in December 2016 because no constructive progress for P was being made. P was unsettled, unable to communicate, frustrated and quite evidently deeply unhappy. A situation which could and should have been avoided. As the chronology in the judgment makes clear, by the end of 2014 or early 2015 at the latest, P was ready for discharge but the enquiries lacked focus or persistence, and whilst I have no doubt that the Applicant and/or Second Respondent believe they worked tirelessly, the bald fact is that they did not. The enquiries were ineffectual, even amateur. Apparent “unexplained difficulties in dealing with the Columbian authorities and organisations” were not subsequently born out. Inexplicably, basic common sense enquiries with the Columbian Embassy had still not occurred many months into the proceedings. As I have found, their efforts were unfocused and superficial. This might be thought to be explained by the apparent novelty of the situation as it presented itself, but what happened during the currency of the proceedings supports the contrary view, that too little intelligent professional focus was brought to bear and bring this most unhappy situation to a conclusion. To submit that the CCG was “throughout commendably assiduous” in seeking the return to Columbia is about as misplaced and offensive a submission as could possibly be contemplated. The judgment records, order after order which was not complied with. Equally, it is submitted “the Applicant and Second Respondent remind the Court of the expressions of satisfaction given by P’s family and by the Columbian Government on her behalf”. They recognise that the CCG worked tirelessly to repatriate P in exceptional circumstances. It would be unfortunate if those efforts were met with a punitive order for costs. Such a submission is at best misplaced. How much more satisfied would P have been to have been repatriated years earlier, rather than being kept caged in an environment and jurisdiction where she was so obviously unhappy and did not belong.

2. It should not be thought that I overlook the care that was provided to P, nor, ultimately her successful repatriation, but what is impossible to ignore is the disorganised thinking, planning and management which resulted in her detention here for so very much longer than necessary.

3. Without hesitation I conclude that the circumstances of this case are so poor and so extreme (both in relation to institution of proceedings and their subsequent conduct) that I should make an order that the costs of the proceedings should be born by the Applicant and Second Respondent. It is submitted to me (at paragraph 2) that the Court is asked to consider that whilst the Applicant was a party throughout, the CCG only being joined towards the end of the proceedings, it was the CCG who was the decision maker. I am not entirely clear what is being submitted here, Ms Rowlands represents both, and I am unable to make any apportionment. They are both public bodies, I simply make an order against both jointly and severally.

THE EARLIER JUDGMENT

In the substantive judgment London Borough of Lambeth v MCS & Anor [2018] EWCOP 14 

1. Having now had several hearings (in an application that itself was, or should have been, as I have said, unnecessary), I can only begin to imagine P’s sense of frustration and loss at being kept here for years against her wishes, and for no good reason. As even the proceedings have demonstrated so fully, the arrangements could and should have been established and implemented long ago, years ago, but because of disorganised, muddled and unfocused decision making, and what has at times verged on an arrogance, P has just had to wait. It should be remembered that P had been kept here against her wishes, at a cost to the taxpayer of over £2,000 per week. If the authority had done what it should have done in a timely professional manner, not only could they have saved themselves over £100,000 a year, and saved the cost to the taxpayer of these protracted High Court proceedings, they could have avoided P the years of misery from being kept a prisoner here, against her will.

1. In view of the history, the shocking history, I made provision for a “long stop” hearing on 13 December 2017 whilst sitting on circuit (hoping still to retain the transfer date of 20 December 2017). I do not think I ever received a position statement from the applicants, who attended by new counsel, who had been inadequately instructed. No one from the applicants, CCG or solicitors had the courtesy to attend. To say this was unfortunate (leaving aside any other issues) is an understatement. No transfer plan had been filed, and important missing detail prevented any progress being achieved. No one appeared to be qualified to make what in some instances were trifling decisions involving a few hundred pounds, e.g. innumerable communications occurred over the provision of, cost of, source of, import duty on, or who should pay for the transport of a wheelchair so urgently required by P, far, far exceeding the cost of the chair itself. Information was given to the Court in relation to, for example, the air ambulance, which subsequently appeared to be wholly misleading and totally without foundation. The approach taken was unhelpful and, at times, verging on petulant. Despite my best efforts it appeared to reflect a deeper, most unfortunate perspective that has, from time to time, permeated these proceedings. In any event, as I say, no one had the courtesy to turn up, so nothing constructive could be achieved at all. Yet again the case was listed for hearing on 19 December 2017, making detailed and contingent directions.

2. At that hearing, absolutely astonishingly, I was told that, whilst the CCG had approved funding for P’s flight to Columbia, it had arranged its meeting inter alia in relation to the cost of transporting the wheelchair and any import duty in Columbia (see above) for 20 December 2017, the following day – apparently those concerned were rather busy with other meetings. An additional issue concerned the provision for the cost of any care if P was taken ill on the flight; who would pay, was it possible to obtain insurance? The authority, in common with its actions before and since the institution of proceedings, conducted itself without regard to anything else, certainly not the welfare of P, and yet further evidence that the institution of proceedings had had no effect. They have had no regard to Court orders, or the involvement of the Court. This hearing occurred just a day short of the first anniversary of the issue of proceedings, and still the simple goal seemed a mile away.