Local authority ordered to pay 85% of the Official Solicitor’s costs in the Court of Protection

CASE ANALYSIS: Lexis®PSL Local Government (EXC0004343)

(LA v ST (by the OS) (Costs Application))

This case involved an application for costs made by the Official Solicitor following a Local Authority’s attempts to restrict a woman’s (‘ST’) access to social media as part of an ongoing welfare case. The Official Solicitor questioned the lack of specific capacity evidence around ST’s use of social media and asserted that the proposed restrictions were unnecessary and disproportionately restrictive. The Court arranged a one-day hearing and directed the Local Authority to file relevant capacity evidence and both parties to file position statements. The Local Authority was late in submitting its position statement, which conceded there was insufficient evidence to rebut ST’s capacity to use social media and that therefore the attended hearing was unnecessary. The Court ordered, pursuant to Court of Protection Rules 2017, r 19.5, the Local Authority to pay 85% of the Official Solicitor’s costs incidental to the hearing.

What are the practical implications of LA v ST?

This case looks at the principles guiding judges when faced with a costs application within personal welfare cases, particularly the circumstances where judges will depart from the ‘general rule’ as costs on the basis of the parties’ conduct.

In this case, the judge reinforces the importance of parties (and particularly the party seeking the action) to conduct themselves in accordance with the directions made by the court. Furthermore, parties are required to continually test the strength of their case, so as to avoid unnecessary expenditure of time and money.

The judge opined that whilst the case was properly brought, and that there was clearly no bad faith on the part of the local authority, the local authority would have ascertained their case was weak much earlier if they had complied with the Court’s directions. The judge also noted that at no point did the local authority seek an extension to the timetable or vacate the hearing.

What was the background of LA v ST?

The ongoing proceedings concerned an 18-year-old woman, (‘ST’) who had been subject to emotional, physical and sexual abuse and had a diagnosis of learning disabilities and ADHD. In late 2021, ST was reported missing and on credible concerns for her safety, the Local Authority successfully obtained an urgent Court Order moving her to a place of safety and for her to be deprived of her liberty there. The Official Solicitor, acting as ST’s litigation friend, and the Local Authority agreed there was sufficient evidence of her incapacity to make decisions as to her residence and care and an interim declaration under Mental Capacity Act 2005, s48, was made.

During a short, remote hearing on 15 February 2022, the Local Authority sought to restrict ST’s use of social media, as they feared she would make contact with her abusers and might give away her address, thereby exposing herself to a risk from her abusive partner.

The Official Solicitor argued that there was no specific capacity assessment dealing with ST’s capacity to make decisions about the use of social media, and that even if she were to lack such capacity the restrictions proposed would be unnecessary and disproportionately restrictive. Accordingly, the judge scheduled an attended hearing for 03 March 2022 and directed the Local Authority to file; ST’s capacity assessment to make decisions as to her access to the internet and social media, alongside statements on its reasoned assessment of the risks and impact of ST’s continued social media access and position as to ST’s best interests. These were to be filed by noon on 25 February 2022.

Three further deadlines were set out:

1. By 4pm Friday 25 February 2022, the local authority shall file and serve an updated and paginated court bundle;
2. by 4pm Monday 28 February 2022, the local authority shall file and serve a position statement;
3. by 4pm Tuesday 1 March 2022, the solicitors for ST shall file and serve a position statement.

The Social Worker’s statement recorded that ST had been accessing social media, but that there had been no inappropriate posts. The deadline to file the statement was noon on Friday 25 February, however, the statement was filed late on 25 February, around 5pm.

The local authority’s position statement was also not filed as ordered at 4pm on Monday 28 February 2022. On Tuesday 1 March 2022, the Official Solicitor served their position statement on the local authority in compliance with the directions, but as it had not received the local authority’s statement, it was evident the author did not know what the local authority’s position. That position statement stated that the local authority’s case on capacity and best interests was weak.

The local authority’s position statement was sent to parties and court on 02 March 2022, late on the day before the hearing. The statement conceded that there was insufficient evidence to rebut the presumption of ST’s capacity to make decisions about accessing the internet and social media.

The attended, day-listed, hearing on the 03 March was therefore needless.

What did the court decide?

The Law

The Judge considered that the ‘general rule’ on costs in personal welfare cases is that that there will be ‘no order as to costs’ pursuant to Court of Protection Rules 2017, r 19.3. However, Court of Protection Rules 2017, 19.5(1) allows for the Court to depart from that general rule, taking into account:

1. the conduct of the parties;
2. whether a party has succeeded on part of that party’s case, even if not wholly successful; and
3. the role of any public body involved in the proceedings”

When considering ‘conduct’, Rule 19.5(2) further delineates the factors the court must take into account, as including:

1. conduct before, as well as during, the proceedings;
2. whether it was reasonable for a party to raise, pursue or contest a particular matter;
3. the manner in which a party has made or responded to an application or a particular issue;
4. whether a party who has succeeded in that party’s application or response to an application, in whole or in part, exaggerated any matter contained in the application or response;

Findings LA v ST

The judge considered that by 25 February 2022, the Local Authority “knew or ought to have known” that their case was weak. The judge also noted that at no stage did the local authority seek an extension to the timetable, or to vacate the 3 March hearing.

The judge confirmed that the Local Authority’s conduct, in failing to comply with the directions order, fell below a proper standard. Further, in light of the weak capacity and best interests evidence obtained, it was unreasonable for the Local Authority to continue to pursue the social media restrictions. The judge confirmed that had it not been for the Local Authority’s failings and breaches, the parties would not have travelled to the all-day, attended hearing and incurred the associated costs.

Accordingly, the judge was satisfied, given the Local Authority’s conduct, that it was appropriate to depart from the ‘general rule’ and ordered the local authority to pay 85% of the costs incurred by the Official Solicitor of and incidental to the hearing on 3 March 2022.

Case details of LA v ST

• Court: Court of Protection
• Judge: Judge Burrows
• Date of judgment: 14/3/2022