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

This case concerns a very recent decision in which the Court declined to make a costs order in favour of the Official Solicitor where the Applicant NHS Trust had withdrawn their applications for test case declarations.

NHS Dorset Clinical Commissioning Group (“the Applicant”) launched what were intended to be four test cases seeking clarification of the law concerning the deprivation of liberty of mentally incapacitated adults. The four cases all involved mentally incapacitated adults living at home and being supported under care plans devised and administered by the applicant Trust. 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 might render them deprived of their liberty.

For a number of reasons, however, the Applicant withdrew the applications, but not before the Official Solicitor had agreed to act for two of the Respondents each of whom had the benefit of being publicly-funded and had incurred legal costs. The Official Solicitor sought payment of its costs from the Applicant, having run up some £30,000 of costs in dealing with the responses to the applications.

The general rule is that there will be no order for costs where the proceedings concern a person’s personal welfare (rule 157 Court of Protection Rules 2007). Departure from this general rule is permitted in certain circumstances, one of which is with reference to the conduct of the parties (rule 159).

The application for costs was, however, refused based on the decision that it was reasonable for the Applicant to raise and pursue this issue. The Court found that 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 negligent if it had not done so. The fact that the Applicant decided to abort the proceedings was found to be a reasonable decision. The judge did not consider this to be an appropriate case for a costs order, most notably for the following reasons: (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.

The Court ultimately made no order for costs in the proceedings save as to a Detailed Assessment of the Respondent’s publicly funded costs despite the Respondent’s submissions that this case was not one which could be considered as a ‘typical’ welfare matter but more similar to a civil claim and further on the basis that the Applicant’s conduct under Rule 159 (1) (a) was unreasonable in issuing three of the four applications. The court did not find favour with any of these arguments.

A certainly very interesting decision dealing with the Court of Protection Rules 2007 and their application of costs together with the wider factors of public interest.

The full judgment can be read here.

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