Analysis
MA, who was born in 1978, was disabled and the PCT responsible for his care brought personal welfare proceedings in the Court of Protection for declarations as to his lack of capacity and where it would be in his best interests to live. MA’s mother opposed the application and, following the discovery that his capital exceeded the relevant limit, public funding was withdrawn in relation to those proceedings. On 31 May 2012 an order was made by Holman J authorising the Official Solicitor, who had been appointed as MA’s litigation friend, to investigate his property and financial affairs for the purpose of securing the costs of his legal representation in the personal welfare proceedings. Any third party holding information relating to MA’s finances was thereby directed to make such disclosure to the Official Solicitor as he might require within seven days of request. The respondent was requested to provide copies of MA’s bank statements by letter dated 11 June 2012, but failed to do so within the specified time scale, or indeed thereafter, notwithstanding reminders. On 30 July 2012 a further order was made by Holman J requiring the respondent to provide copies of MA’s bank statements within seven days of service, but it was not until 28 August 2012 that they were at last disclosed. By that time, the costs incurred by the solicitors acting for the Official Solicitor amounted to £13,143.48 and there was an offer of settlement made by the respondent, but limited to the sum of £1,396.78. Further costs were incurred subsequently. The Official Solicitor then applied for a costs order against the respondent, inviting the court to assess its schedule summarily. The respondent, which had been joined in as a party, neither attended nor was represented at the hearing.
Held (making the order for costs):
This was a discrete property and affairs application within personal welfare proceedings. The general rule was that the costs of the proceedings should be charged to the estate, but this was a case in which a departure from the general rule was justified. In having regard to all the circumstances, particularly relevant was the conduct of the parties and this included the manner in which a party has made or responded to an application or a particular issue. The respondent had failed without reasonable cause to comply with two orders of the court, acknowledged that it was at fault and had offered to meet some of the costs occasioned by its default. If the respondent had complied with the first order of Holman J, the bank statements should have been supplied to the Official Solicitor by 18 June 2012. Accordingly, the respondent should pay all the costs of the Official Solicitor between 18 June and 28 August 2012 on the standard basis, subject to detailed assessment, if not agreed. The invitation to assess the costs summarily was declined, having regard to the duty imposed by the overriding objective and the express wording of para 13.13(b) of the Practice Direction to Part 44 of the Civil Procedure Rules 1998 (as amended) that required the judge to ensure that the final figure was not disproportionate and/or unreasonable. It followed, therefore, that the solicitors acting for the Official Solicitor had to satisfy the court that the work undertaken was proportionately and reasonably incurred, and that the costs of that work were proportionate and reasonable in amount. That required a detailed assessment, not a summary assessment.
JUDGMENT SENIOR JUDGE LUSH: [1] This is a discrete property and affairs application that has arisen within personal welfare proceedings. The background [2] MA was born in 1978 and has autistic spectrum disorder, severe learning disabilities and challenging behaviour. He lives in a small care home in north London with four other men who have …Continue reading "Re MA 12039024"