Anthony Gold

Get in touch

020 7940 4060

  • People
  • Insights
  • What to Expect
  • Contact Us
Anthony Gold
  • Services
    • Housing And Property Disputes
      • Property Disputes
      • Leasehold Services
      • Services For Commercial Landlords, Tenants And Agents
      • Services For Residential Landlords And Agents
      • Housing And Tenancy Issues
      • Judicial Review
    • Injury And Medical Claims
      • Life Changing Injuries
      • Medical Claims
      • Personal Injury
      • Child Abuse
    • Family And Relationships
      • Starting Relationships
      • Ending Relationships
      • After Relationships End
      • Useful Contacts
      • Religious & Cultural Issues
      • Family Law FAQs
      • Family Dispute Resolution
      • Modern Families And Surrogacy Arrangements
    • Conveyancing, Property & Business Services
      • Business Agreements
      • Business Disagreements
      • Commercial Property
      • Commercial Property Disputes
      • Leasehold Services
      • Residential Property
    • Wills, Estates & Court Of Protection
      • Wills, Trusts And Estates
      • Claims Against Trusts And Estates
      • Capacity And Court Of Protection
    • Dispute Resolution & Employment Law
      • Personal Claims
      • Professional Negligence
      • Business Disagreements
      • Claims Against Trusts And Estates
      • Employment
    • People
    • Insights
    • What to Expect
    • Contact Us
  • Get in touch

    020 7940 4060

  • Housing and Property Disputes
  • Injury and Medical Claims
  • Family and Relationships
  • Conveyancing, Property & Business Services
  • Wills, Estates & Court of Protection
  • Dispute Resolution & Employment Law
  • Property disputes
  • Ownership disputes and shares in property
  • Challenging the decisions of councils and public bodies
  • Rights of way, boundaries, covenants and easements
  • Party wall disputes
  • Leasehold services
  • Lease extension
  • Collective enfranchisement
  • Service charge disputes
  • Repairs to leaseholds
  • Right to manage
  • Services for commercial landlords, tenants and agents
  • Breach of covenant
  • Forfeiture and recovery of possession
  • Dilapidations and failing to repair
  • Lease renewals
  • Services for residential landlords and agents
  • Regulatory issues
  • Repossession
  • Agents (including letting agreements)
  • Housing and tenancy issues
  • Repairs
  • Repossession and eviction
  • Rehousing and homelessness
  • Judicial review
  • Life changing injuries
  • Brain injury
  • Spinal cord injury
  • Amputation
  • Psychiatric injury
  • Fatal injuries and inquests
  • Medical claims
  • Surgical claims
  • Non-Surgical Claims
  • Birth injury
  • Child health and paediatrics
  • GP and primary care treatment
  • Private healthcare
  • Personal injury
  • Road traffic accidents
  • Accidents abroad
  • Accidents at work
  • Faulty products
  • Public liability and other accidents
  • Child abuse
  • Child abuse
  • Starting relationships
  • Pre nuptial agreements
  • Pre civil partnership and same sex relationship agreements
  • Cohabitation and living together agreements
  • Property ownership agreements
  • Ending relationships
  • Divorce and separation
  • Ending a civil partnership
  • Ending cohabitation
  • Agreeing child arrangements
  • Agreeing finance and assets
  • International arrangements
  • After relationships end
  • Abduction and leave to remove children
  • Changing and challenging parenting agreements
  • Changing and challenging financial agreements
  • Grandparents’ rights
  • Useful Contacts
  • Financial planners
  • Referral to Pension Actuaries and Pension on Divorce Experts (PODEs)
  • Tax Specialists
  • Financial Neutrals
  • Counselling
  • Conveyancing
  • Wills
  • Religious & cultural issues
  • Jewish family law
  • Islamic family law
  • Family Law FAQs
  • Children FAQs
  • Cohabitation Agreement FAQs
  • No-Fault Divorce and Separation FAQs
  • Financial Issues FAQs
  • Pre-Marital Contracts FAQs
  • Family Dispute Resolution
  • Roundtable Meetings
  • One Solicitor Solution
  • Mediation
  • Collaborative Practice
  • Arbitration
  • Second Opinions
  • Private FDR’s
  • Early Neutral Evaluation (‘ENE’)
  • Modern Families and Surrogacy Arrangements
  • Domestic Surrogacy
  • International Surrogacy
  • Business agreements
  • Business advice
  • Employment
  • Mergers and acquisitions
  • Supplier contracts
  • Business disagreements
  • Commercial property
  • Commercial Sale and Purchases
  • Commercial loans and mortgages
  • Property Investment: plot developers & plot buyers
  • Auction: sales and purchases
  • Commercial advice for landlords and tenants
  • Planning advice
  • Mortgage debentures and securities
  • Commercial property disputes
  • Breach of covenant
  • Dilapidations and failing to repair
  • Forfeiture and recovery of possession
  • Lease renewals
  • Leasehold services
  • Lease extension
  • Collective enfranchisement
  • Service charge disputes
  • Repairs to leaseholds
  • Right to manage
  • Residential property
  • Residential Sale and Purchases
  • Property Investment: plot developers & plot buyers
  • Remortgages
  • Auction: sales and purchases
  • Ownership matters and transfers
  • Wills, trusts and estates
  • Making a will
  • Applying for probate
  • Distributing the estate
  • Arranging lasting power of attorney
  • Trust advice
  • Tax planning and advice
  • Claims against trusts and estates
  • Contesting a will
  • Losses caused by trustees
  • Capacity and court of protection
  • Appointing a deputy
  • Removing a deputy
  • Arranging lasting power of attorney
  • Gifts and legacies
  • Managing assets under a deputyship
  • Care issues
  • Removing lasting and enduring power of attorney
  • Special educational needs
  • Capacity and court of protection
  • Personal claims
  • Debt recovery
  • Ownership disputes and shares in property
  • Civil and commercial mediation
  • Building disputes
  • Professional negligence
  • Professional Negligence
  • Property Fraud
  • Investment Fraud
  • Business disagreements
  • Building disputes
  • Civil and commercial mediation
  • Claims against directors
  • Contract disputes
  • Debt recovery
  • Directors personal liabilities
  • Employment
  • Professional negligence
  • Claims against trusts and estates
  • Contesting a will
  • Losses caused by trustees
  • Employment
  • Employment
  • Unfair or Wrongful Dismissal
  • Settlement Agreements
Anthony Gold > Blog > Local authority ordered to pay 85% of the Official Solicitor’s costs in the Court of Protection

Nick Brown

nick.brown@anthonygold.co.uk

Share
  • April 28, 2022
  • Blog
  • By  Nick Brown 
  • 0 comments

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
* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*
  • Tags:
  • Court of Protection

Nick Brown

nick.brown@anthonygold.co.uk

Get in touch

Call, email or use a contact form – whichever suits you. We’ll let you know the best person to help you get started.

Call or Email

020 7940 4060

mail@anthonygold.co.uk

No comments

Add your comment

We need your name and email address to make sure you’re a real person. We won’t share your email address with anyone else or send you spam. Please complete fields marked with *.

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

*

code

Related Services

  • Arranging lasting power of attorney

  • Appointing a deputy

  • Removing a deputy

  • Managing assets under a deputyship

About the author

  • Nick Brown

Meet the team

  • Capacity and court of protection

You might also like...

  • Court of Protection – Property and Affairs Deputyship Post Settlement Considerations

  • Supervision of Deputies: The role of the Office of the Public Guardian

Contact Us

Request a Call Back

About Us

  • Accessibility
  • Compliance
  • Responsible Business
  • Equality & Diversity
  • History
  • Our Beliefs
  • List of LLP members

Careers

  • Trainee Solicitors
  • Vacancies

Social Media

  • Follow us on Twitter
  • Follow us on LinkedIn
  • Follow us on Instagram
  • View our YouTube channel

Online Payments

  • Payment page through Worldpay

Accredited by

Lexel Parctice
76000Award

Copyright © Anthony Gold Solicitors LLP. All rights reserved. Anthony Gold Solicitors LLP is a limited liability partnership registered in England and Wales with registered number OC433560 and is authorised and regulated by the by the Solicitors Regulation Authority with registration Number 810601