The general ruleCosts:general ruleCostsCosts:general ruleCosts:appointment of deputiesCostsCosts:general ruleCosts(reproduced in full in appendix B)Costs:general ruleCostsCosts:serious medical treatment casesCosts:general ruleCosts
16.7The COPR currently sets out two very different general rules (although at the time of writing a consultation is understood to be likely as to whether to amend that relating to P’s property and affairs
1For updates, see www.courtofprotectionhandbook.com/posts/.):
•The general rule in cases concerning P’s welfare is that there will be no order as to the costs of the proceedings, or of that part of the proceedings that concerns P’s welfare.
2COPR r157. This means that in ‘pure’ welfare cases, the parties should expect to bear their own costs. Clients who are not legally aided therefore need to be advised that they cannot expect to recover costs they incur in those proceedings.
•In respect of cases concerning P’s property and affairs, the general rule is that the costs will be met from P’s estate.
3COPR r156. 16.8Special provisions apply in relation to the appointment of deputies:
•An order appointing a property and affairs deputy will deal with both with any legal costs incurred by the deputy in making the application and the expenses incurred by the deputy in the discharge of their functions. Where a lay deputy is appointed, the costs will be limited to reasonable out-of-pocket expenses.
4MCA 2005 s19(7). Where a professional is appointed, either as a sole appointment or jointly with a lay deputy, a clause will be included to permit fixed costs to be taken,
5COPR r164, PD 19B. or for the costs to be assessed by the Supreme Court Costs Office. The rates that can be charged by a professional deputy are subject to the Guideline Hourly Rates.
6See www.judiciary.gov.uk/guideline-hourly-rates-2011. Where an hourly rate is authorised, PD 19B provides that solicitors will ordinarily be entitled to a higher rate than local authorities. The Practice Direction explicitly leaves to the court’s discretion in each case the issue of whether and how to apply its provisions to a not-for-profit organisation deputy or to a deputy from another discipline, such as an accountant. For a detailed exposition of the law and practice on this point, see
The Friendly Trust’s Bulk Application.
7[2016] EWCOP 40. •Health and welfare deputies will not usually be allowed to recover either the legal costs of making the application or of the expenses incurred in discharging their functions. Professional deputies are – rarely – appointed to act as health and welfare deputies, and it is suggested that the same approach would be adopted as if they were a property and affairs deputy.
•Good practice guidance on professional costs incurred by deputies in the discharge of their duties was issued by the Office of the Public Guardian and the Supreme Court Costs Office in July 2016.
8www.gov.uk/government/uploads/system/uploads/attachment_data/file/538901/19_07_16_Professional_deputy_costs__FINAL.pdf. See further chapter 20.
16.9Many cases involve a mixture of welfare and property and affairs issues. It is important to differentiate between the different elements of the case to ensure that there is clarity as to who is responsible for what. The court will, insofar as possible, apportion the costs between the issues.
9COPR r158.16.10In
Re E,
10[2014] EWCOP 27. Senior Judge Lush considered the origin of the ‘general rules’ in COPR 156–7 and commented:
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.
Serious medical treatment cases
16.11While the general rule in health and welfare cases is as set out above, it is important to note that the courts have recognised what amounts to a further general rule in cases relating to serious medical treatment (see further in respect of such cases, chapter 22). Reflecting the position that prevailed before the MCA 2005 came into force, the invariable practice is for the NHS Trust that made the application to pay half of the costs of the Official Solicitor (who will, in all cases where P is made a party – ie almost all
11Essentially the only exception being where urgency makes this impossible: for an example, see Newcastle-upon-Tyne Foundation Trust v LM [2014] EWHC 454 (COP). – act as P’s litigation friend).
12Re D (Costs) [2012] EWHC 886 (COP), [2012] COPLR 499.