IMPORTANT NOTICE

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: 1252746T   

Neutral Citation Number: [2014] EWCOP 27

COURT OF PROTECTION

MENTAL CAPACITY ACT 2005
First Avenue House
42-49 High Holborn 
London WC1V 6NP

Date: 15 August 2014

Before:

SENIOR JUDGE LUSH

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Re E

Between:

	N and S 	Applicant	
	- and -		
	    E (1)
- and -
    M (2)
- and -
    Others (3)	

Respondents	
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Philip Jenkins (instructed by Harcus Sinclair) for the Applicants
Ruth Hughes (instructed by the Official Solicitor) for the 1st Respondent
Jordan Holland (instructed by Charles Russell) for the 2nd Respondent
The 3rd and 4th Respondents did not appear and were not represented

Hearing date: 5 August 2014
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JUDGMENT
Senior Judge Lush:

1.	These proceedings relate to E, who was born in 1933 and lives in London. She has an estate worth approximately £30,000,000.

2.	The applicants are her daughter and son, N and S.

3.	The first respondent is E herself, acting by her litigation friend, the Official Solicitor.

4.	The second respondent, M, was formerly her carer.

5.	The third and fourth respondents are Julian Korn and Ian Burman, both of whom are partners in Laytons Solicitors.

6.	This judgment relates primarily to the costs of the proceedings and, in particular, whether M should be made to pay her own costs or whether they should be assessed and paid from E’s estate.

7.	M’s costs are in the region of £11,000.

8.	The judgment concludes with a brief discussion of how the court was able to salvage E’s preferences for medical treatment at the end of her life from the wreckage caused by the termination of the appointment of her health-care proxy. This aspect of the proceedings was uncontested and reflects the consensus of all parties.

The background

9.	On 11 December 2008 E executed a Lasting Power of Attorney (‘LPA’) for property and affairs and an LPA for personal welfare, in which she appointed her husband, D, and Julian Korn jointly to be her attorneys. 

10.	She also appointed two replacement attorneys, M and Ian Burman, and expressly stated that M was to replace D, and Ian Burman was to replace Julian Korn.

11.	Both LPAs were registered by the Public Guardian on 24 March 2009.

12.	E has suffered from Parkinson’s disease since 1999, and in 2006 she was diagnosed as having early stage dementia.

13.	M was originally employed in 2000 to provide E with physiotherapy on a regular basis. Over time M grew personally close to D, which led to a serious deterioration in his relationship with his children, N and S.

14.	In their application to the court the applicants claimed that between 2009 and 2011 D and M had restricted contact between them and their mother, and they produced statements from two witnesses who described instances in which M had physically abused both D and E.

15.	The applicants also alleged that, in addition to emotional and physical abuse, M had financially abused D and E and had extracted several million pounds from them. 

16.	E’s husband, D, died in June 2014 and following his death the applicants were concerned that M now had unfettered control of the household and could physically abuse E. 

17.	Accordingly, on Monday 7 July 2014 they applied to the court for an order without notice: 
(a)	to compel M to deliver up E’s passport and not remove her from England;
(b)	to suspend the powers of M and Julian Korn to act as the attorneys under the LPAs; and
(c)	to confer interim responsibility for E’s care upon her children.

18.	There are technical problems regarding succession when attorneys have been appointed to act jointly, though there is no need for me to consider them in this decision. Suffice it to say that, in my opinion, the joint appointment of D and Julian Korn was terminated on D’s death, and the two replacement attorneys, M and Ian Burman, succeeded them as joint attorneys.

19.	I heard the application on Wednesday 9 July 2014. Simon Taube QC appeared for the applicants and the order they sought was granted. A penal notice was attached to the order and M was required to quit E’s home forthwith. A further hearing was listed for 11 am on Tuesday 5 August 2014. 

Events following the order of 9 July 2014

20.	On Thursday 10 July 2014 there was a meeting between the parties at Laytons’ offices, at which: 
(a)	the proceedings were formally served on M;
(b)	Laytons confirmed that the attorneys did not intend to contest the claim, though they refuted the substance of it;
(c)	the attorneys agreed to disclaim their appointment under the LPAs; 
(d)	all parties agreed that there was now a need for the court to appoint an interim deputy for property and affairs, and the attorneys agreed to co-operate with the interim deputy;
(e)	M agreed to renounce her appointment as an executor of E’s will; 
(f)	M agreed to renounce her appointment as health care proxy under E’s living will; and
(g)	M handed S a set of keys to E’s property. 

21.	Later that day S and his brother-in-law supervised M’s removal of her possessions from the property and she subsequently travelled to Florida.

22.	On 15 July 2014 I made an order in which, having recited that the Official Solicitor was willing to act as E’s litigation friend, I directed that his costs relating to the proceedings were to be assessed and paid out of E’s estate.  

23.	The second hearing took place on Tuesday 5 August 2014 and was attended by:
(a)	Philip Jenkins of Ten Old Square, counsel for the applicants;
(b)	Ruth Hughes of Five Stone Buildings, counsel for E, acting by the Official Solicitor; and
(c)	Jordan Holland of Five Stone Buildings, counsel for M.

24.	At that hearing the court made orders:
(a)	appointing Keith Bruce-Smith of Harcus Sinclair Solicitors to be E’s interim deputy for property and affairs; and
(b)	authorising Alison Meek of Harcus Sinclair to execute a codicil on E’s behalf revoking M’s appointment as her executrix.

The law relating to costs in Court of Protection proceedings

25.	The primary source of law on costs in Court of Protection proceedings is the Mental Capacity Act 2005, sections 55 and 56. Section 55(1) provides that “Subject to Court of Protection Rules, the costs of and incidental to all proceedings in the court are at its discretion.”

26.	The secondary sources of law relating to costs in the Court of Protection are:
(a)	Part 19 (rules 155 to 168) of the Court of Protection Rules 2007 (Statutory Instrument 2007 No. 1744 (L. 12)); and
(b)	two practice directions – 19A and 19B – which supplement Part 19 of the Court of Protection Rules, but are not relevant to this decision.

27.	There are four rules that need to be considered - rules 156, 157, 158, and 159 – which refer to the person to whom the proceedings relate as ‘P’. These rules provide as follows:

Property and affairs – the general rule

156. Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings, or of that part of the proceedings that concerns P’s property and affairs, shall be paid by P or charged to his estate.

Personal welfare – the general rule

157. Where the proceedings concern P’s personal welfare the general rule is that there will be no order as to the costs of the proceedings or that part of the proceedings that concerns P’s personal welfare.

Apportioning costs – the general rule

158. Where the proceedings concern both property and affairs and personal welfare the court, insofar as practicable, will apportion the costs as between the respective issues.

Departing from the general rule

159. – (1) The court may depart from rules 156 to 158 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances, including:
(a)	the conduct of the parties;
(b)	whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(c)	the role of any public body involved in the proceedings.

(2)	The conduct of the parties includes:
(a)	conduct before, as well as during, the proceedings;
(b)	whether it was reasonable for a party to raise, pursue or contest a particular issue;
(c)	the manner in which a party has made or responded to an application or a particular issue; and
(d)	whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response.

(3)	Without prejudice to rules 156 to 158 and the foregoing provisions of this rule, the court may permit a party to recover their fixed costs in accordance with the relevant practice direction.

The applicants’ skeleton argument

28.	In anticipation of the hearing on 5 August 2014, counsel for the applicants, Philip Jenkins, produced a written skeleton argument, in which he said as follows:

“Save for the costs of the 2nd Respondent, the Applicants’ position is that the costs of the parties should be assessed and paid from the 1st Respondent’s estate in the usual way, per rules 156 and 157. As to the 2nd Respondent’s costs, the Applicants invite the court to make no order as to costs for the following reasons:-

(1)	The Applicants have put before the court a strong prima facie case of physical, emotional and financial abuse by the 2nd Respondent against their elderly and vulnerable parents. The 2nd Respondent has chosen not to engage with any of those allegations.

(2)	The evidence of the history of the personal relations between the Applicants and the 2nd Respondent suggests it is fanciful to think that the 2nd Respondent would have agreed without more to relinquish all control and influence over E.

(3)	Moreover, in view of the evidence before the court, the Applicants were reasonable to fear that if they articulated their concerns with the 2nd Respondent, asking her to give up all control and influence, there was a real (not fanciful) risk that this could put their mother at risk (including by returning with her to Florida). They were reasonably entitled to take the view that they should err on the side of caution in their mother’s best interests.

(4)	The 2nd Respondent had already indicated to the 1st and 2nd Applicants that she intended to take the 1st Respondent back to Florida in the autumn of 2014.

(5)	The 2nd Respondent attended the meeting at Laytons Solicitors on 10th July and she indicated then that she had no intention of contesting matters. It was not until around 31st July that she decided to instruct solicitors, Charles Russell, to make a statement. However, the statement explains in few words that she is not contesting the application and then at rather greater length why the Applicants should pay her costs, presumably of the witness statement which is focused in large part on why she is entitled to her costs from the Applicant. The contents of that witness statement did not add substantively to the Laytons letter of 10 July 2014.

(6)	It is not without significance that a substantial proportion of E’s 60th anniversary jewellery purchased by D in February 2014 was in the 2nd Respondent’s possession (where it is thought to have been since at least the middle of May) after service of the court orders on 10th July 2014 plus a very valuable diamond ring belonging to E. These items were delivered up by the 2nd Respondent to US lawyers acting for the 2nd Applicant on 21/22 July 2014.

(7)	Overall, the idea that the 2nd Respondent seeks her costs of the application, as well as citing costs as a reason for not contesting matters, may appear rather odd in the context of the very considerable sums she has received. There is no real dispute that she has received at the very least $8-9 million of the family’s money since 2008. The Applicants regard the 2nd Respondent’s position in this matter as a deliberately personal attack on them for having finally faced up to matters in the best interests of their mother.

(8)	The Applicants therefore respectfully request that the court order in the terms or substantially in the terms of the draft.

Mr Holland’s submissions

29.	M’s counsel, Jordan Holland, gave the following reasons why his client’s costs should be paid from E’s estate. 

30.	He noted that this case involves not only issues relating to E’s property and affairs, but also issues relating to her personal welfare, in respect of which different general rules apply. He suggested, however, that it would be inappropriate to apply rule 157 and apportion costs between the respective issues, and in support of this proposition, he referred to a judgment of mine, Re RC Deceased [2010] COPLR 1022, at paragraphs 60-62.

31.	Mr Holland continued:

(a)	M does not accept the veracity of the applicants’ evidence.

(b)	If she were to serve detailed evidence in response to all the allegations, it would be disproportionate and would drive up the costs.

(c)	M was made a respondent to these proceedings and had no choice but to respond to the application.

(d)	She was served with a wide-ranging injunction with a penal notice attached to it.

(e)	Not only has M complied with the injunction but she has gone even further to co-operate with the applicants in order to facilitate the change in E’s care regime.

(f)	Laytons Solicitors, who were previously acting for her, advised her to seek independent legal advice, which she did. She instructed Charles Russell to advise and represent her.

(g)	As regards E’s jewellery, M explained how these items had come to be in her possession; provided a full list of them and, as we have seen, delivered them to the US lawyers acting for the 2nd Applicant.

(h)	None of the allegations of abuse has been substantiated.

(i)	There was no real need for this application, and there was certainly no imminent threat that E would be removed from the court’s jurisdiction. M had simply suggested to N and S that their mother might like to go to Florida in the autumn.

(j)	The Court of Protection Special Visitor noted in his report that: “[E] was prepared for M to act as her attorney. I mentioned to her that her children felt that M had been unkind to her, but she did not accept that there was any reason why she should not act as her proxy decision-maker.” 

(k)	The attendance note made by Janet Ilett of the Official Solicitor’s office, who visited E on 24 July 2014, states: “I asked about M and whether she was still a carer to which E replied that she was ‘still around’. Would she be happy for M to visit her? She replied that ‘It wouldn’t hurt’ and ‘We had a nice time’.”

Miss Hughes’s submissions

32.	In her oral submissions at the hearing, E’s counsel, Ruth Hughes, said as follows:

(a)	There are three sets of costs: 
(i)	the applicants’;
(ii)	the Official Solicitor’s; and
(iii)	the second respondent’s.

(b)	The Official Solicitor is already entitled to his costs by virtue of the order of 15 July 2014.

(c)	Although this began primarily as a personal welfare application, with the applicants seeking an injunction to restrain E’s removal from the jurisdiction, the property and affairs aspects became more prominent as the proceedings developed.

(d)	In Re RC Deceased [2010] COPLR 1022, at paragraph 74, reference was made to Re Cathcart [1892] 1 Ch 549, 561, in which the Court of Appeal suggested that the court should have regard to the respective means of the parties when exercising its discretion as to costs. E has an estate worth £30,000,000.

(e)	It would be disproportionate to attempt to apportion the costs.

(f)	The Official Solicitor has no difficulty with agreeing that the applicants’ costs should come from the estate.

(g)	The Official Solicitor has some sympathy with Mr Holland’s suggestion that an application of an urgent nature may have been unnecessary.

(h)	This matter has largely been resolved by consensus.

(i)	M has conceded a great deal of ground and relatively little has been incurred in the way of costs.

(j)	Certainly, M’s attitude has avoided the need for a full fact-finding exercise, which could have been long, painful, and very expensive.

(k)	It would be reasonable to allow M’s costs from the estate. There was a penal notice attached to the order and her response has been entirely appropriate.

Decision

33.	I agree with Mr Holland and Miss Hughes that there is no point in attempting to apportion the costs between:
(a)	property and affairs matters, where the general rule (156) is that the costs are paid by P or charged to his estate; and
(b)	personal welfare matters, where the general rule (157) is that there will be no order as to costs.

34.	The origin of the general rule in property and affairs cases goes back to the decision of the Lords Justices in Lunacy in Re Windham (1862) 4 De G. F. & J. 53, following which the Lunacy Amendment Act 1862 conferred upon the court a wide discretion as to costs. 

35.	As both Mr Holland and Miss Hughes observed, the current rule 156 is largely a replication of the principles laid down by the Court of Appeal in Re Cathcart [1892] 1 Ch 549, with a few exceptions, such as a requirement in Re Cathcart, which does not appear in the Court of Protection Rules 2007, to have regard to the respective means of the parties. 

36.	By contrast, the general rule in personal welfare cases is of recent origin, dating from 1989, and reflects the fact that most personal welfare cases are of a public law nature.

37.	In this case, no public bodies, such as the National Health Service or a local Social Services authority, were involved, and the proceedings were essentially private law proceedings. Accordingly, it would be appropriate to apply rule 156 as the starting point.

38.	Rule 159, which describes the circumstances in which the court may depart from the general rule, refers to the conduct of the parties both “before, as well as during the proceedings.”

39.	As regards M’s conduct before the proceedings, the allegations that she physically, emotionally and financially abused D and E have not been put to proof, and are a matter for another court to determine in the context of any claim brought against her for the recovery of funds.

40.	M’s conduct during these proceedings has been satisfactory and she has done what was required of her.

41.	The applicants’ suggestion that M had launched “a deliberately personal attack on them for having finally faced up to matters in the best interests of their mother” is an exaggeration, which, in other circumstances, would have justified penalising them as to costs pursuant to rule 159(2)(d).

42.	Having regard to all the circumstances, therefore, I order that the costs of all the parties be assessed on the standard basis and paid from E’s estate.

Declaration relating to E’s Living Will

43.	There was a novel point in these proceedings, which, as far as I am aware, has never been considered by the court before. This involved E’s advance decision to refuse treatment or, as she described it, her ‘Living Will’.

44.	On 11 December 2008 E signed a Living Will in which she: 
(a)	expressed her preferences for treatment at the end of her life; and 
(b)	appointed her husband, D to, be her health care proxy, and M to replace him in the event that he predeceased her (which he did) .

45.	On the same day E executed an LPA for personal welfare, in which she repeated the treatment preferences set out in her Living Will, but it was not entirely clear which document she signed first; the LPA or the Living Will. 

46.	Section 25(2)(b) of the Mental Capacity Act 2005 provides that:

“An advance decision is not valid if P … has, under a lasting power of attorney created after the advance decision was made, conferred authority on the donee (or if more than  one, any of them) to give or refuse consent to the treatment to which the advance decision relates.”

47.	Section 9(2)(b) of the Act provides that: 

“A lasting power of attorney is not created unless – 
(a)	…
(b)	an instrument conferring authority of the kind mentioned in subsection (1) is registered in accordance with Schedule 1. ” 
 
48.	The advance decision was made on 11 December 2008 and the LPA for personal welfare, although signed by E on the same day, was not created until it was registered by the Public Guardian on 24 March 2009.

49.	Accordingly, E’s Living Will was not valid because the LPA for personal welfare had been created after it was made and, as an unforeseen consequence of the attorneys’ disclaimer, there was a danger that the treatment preferences that E had expressed in both her Living Will and LPA would be lost and consigned to oblivion. 

50.	To remedy this the court made a declaration under section 26(4) of the Act, which, after reciting the events that had happened and the guidance that E had recorded in her LPA for personal welfare, stated:

IT IS DECLARED as follows:

The advance decisions made by E in the Living Will and set out in the Schedule to this declaration continue to exist and to be valid and to be applicable to her treatment.

THE SCHEDULE
RECITALS

(1)	I address this living will to my family, my doctor and anyone else who may be concerned with my health care.

(2)	I have carefully considered the contents of this living will and they supersede any previous oral or written directions which I may have given about my health care.

(3)	I intend this living will to take effect if:

(a)	Two registered medical practitioners are of the opinion that I am no longer capable of participation in or communicating to others decisions about my health care or treatment; and

(b)	I am suffering from and will almost certainly spend the rest of my life in, one or more of the following conditions:

(i)	being in constant unremitting pain;
(ii)	being unconscious and unlikely ever to regain consciousness; or
(iii)	suffering from an incurable condition which will result in death within a short time.

OPERATIVE PROVISIONS

1.	I refuse all medical or surgical treatments or procedures which are aimed only at prolonging or sustaining my life.

2.	I consent to receive such treatment as will relieve my pain and suffering and make me more comfortable and to being fed. I consent to such treatment even though it may shorten my life.

3.	I would like my children to be consulted before any decision is made and implemented and to take part in any such decision.

4.	All decisions are to apply to the treatments or procedures described in clauses 1 and 2 even if my life is at risk.  

5.	It is of the utmost importance to me that whatever the cost I be cared for at home for the remainder of my life and that I be allowed to die at home.