The statutory provisions(reproduced in full in appendix A)Costs:statutory provisionsCosts:Mental Capacity Act 2005CostsCosts:statutory provisionsCosts:Mental Capacity Act 2005CostsCosts:statutory provisionsCosts:Court of Protection RulesCostsCosts:statutory provisionsCosts:Civil Procedure Rules, andCostsCosts:statutory provisionsCosts:Civil Procedure Rules, andCosts
Mental Capacity 2005
16.2Mental Capacity (MCA) 2005 s55 provides that:
(1)Subject to Court of Protection Rules, the costs of and incidental to all proceedings in the court are in its discretion.
(2)The rules may in particular make provision for regulating matters relating to the costs of those proceedings, including prescribing scales of costs to be paid to legal or other representatives.
(3)The court has full power to determine by whom and to what extent the costs are to be paid.
(4)The court may, in any proceedings–
(a)disallow, or
(b)order the legal or other representatives concerned to meet,
the whole of any wasted costs or such part of them as may be determined in accordance with the rules.
(5)‘Legal or other representative’, in relation to a party to proceedings, means any person exercising a right of audience or right to conduct litigation on his behalf.
(6)‘Wasted costs’ means any costs incurred by a party–
(a)as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or
(b)which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.
16.3Practitioners should be aware of the powers in MCA 2005 s55(3)–(6) to use costs sanctions against legal representatives when the court considers this to be justified. These powers replicate the powers in Senior Courts Act 1981 s51(6), and will be deployed according to the same criteria.
1Sharma and Judkins v Hunters [2011] EWHC 2546 (COP), [2012] COPLR 166.Court of Protection Rules
16.4COPR Part 19, as amended most recently by the Court of Protection (Amendment) Rules 2015,
2SI No 548 sets out the general provisions dealing with costs. We set out the key provisions below.
Application of other statutes and the Civil Procedure Rules
16.5Some of the provisions in the Civil Procedure Rules (CPR) 1998 apply to Court of Protection cases, with modifications.
3COPR r160, PD 19A. The relevant provisions in the COPR importing specific rules from the CPR were drafted prior to the re-writing of the CPR in 2013. Confusingly for practitioners, the COPR were not immediately updated to take account of changes in the CPR. Therefore, the numbering set out in COPR r160 no longer corresponded with the CPR as they then stood. However, the Court of Protection (Amendment) Rules 2015 removed this anomaly by substituting a new COPR r160 and we set out in the table in appendix C the provisions of the CPR (as at 1 April 2015
4COPR r9(2) and PD 3C (COPR Pr2.5(2) and Pilot PD 2C where the Case Management Pilot applies). This can be updated by updating PD 3C (COPR r9(2)).) that apply in the Court of Protection by virtue of the current iteration of COPR r160.
16.6By virtue of provisions contained in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), a costs order can be made against a party who holds a legal aid certificate, but these cannot exceed the amount which it is reasonable for that party to pay, having regard to the circumstances including the conduct and financial resources of all the parties. If a legally aided party is ordered to pay an amount of costs which is less than the costs incurred by the receiving party, then the receiving party may apply for an order that the shortfall is met by the Lord Chancellor. There is no reason why, in principle, such an order could not be made in favour of a public body.
5See LASPO s26; Civil Legal Aid (Costs) Regulations 2013; and the detailed Guidance Notes on the application of LASPO s26(1), issued by the Senior Costs Judge.