Risk Warning Given On Costs In Court Of Protection Litigation

Date Added 08.09.16

Over the last year the Court of Protection Ad hoc Court Rules Committee has been looking into whether consideration should be made to change the cost rule with regard to financial and property applications.

The Ministry of Justice will be shortly issuing a consultation document to the proposed changes.

However, it has been picked up by Tollers Head of the Elderly and Vulnerable Client Unit Karon Walton, that The Court of Protection Judges have already been exercising their discretion under the general rule following the recent case by the President of The Court of Protection Rt Hon Sir James Munby in the case of Re A (A Patient) Re applications by and against Desmond Maurice Fitzgerald No 2 (2016) EWCOP 39  https://www.judiciary.gov.uk/wp-content/uploads/2016/08/a-20160810.pdf?_ga=1.203329873.1552408319.1473234251

This case has followed the court starting to issuing warnings to litigants in directions requesting parties to negotiate and settle the matter before heading to the court door.

The main issue for the Court of Protection was that historically in property and affairs cases, costs were generally paid by the incapacitated person’s estate, who themselves were often oblivious to the arguments going on around them and who were then forced to bear the costs of unjust applications and objections by disgruntled family members or friends.

The fact that parties were able to take action without having to face any financial consequence themselves means often people would object to applications simply because they could. This raised the moral question of whether an incapacitated individual should have to bear the court costs.

Following The Ministry of Justice’s upcoming consultation, it is hoped that The Court of Protection will make changes to the court rules by giving judges wider powers when directing costs, but until this has been brought in, it is clear the Judges have decided to take the issue of costs seriously in directing against other parties by using their powers of discretion.  It is clear therefore, anyone considering objecting unreasonably to an application or to take an application which is not justified then these parties could not only be liable for their own costs, but also those of the other parties.  These costs could be in the region of hundreds of thousands of pounds.

One of the other big changes the Court of Protection have implemented in the last year, is that cases of this nature are now widely published, following the Transparency Practice Direction, so litigants will also need to be aware that cases of this nature are likely to be reported by the press associations.

The advice from Tollers EVCU team is anyone having concerns in this area should seek specialised legal advice before entering any contentious proceedings. Tollers are happy to offer a free initial consultation.

Should you require any advice on this area of law, or indeed any other legal matters, Talk to Tollers on 01604 258558 and a member of our team will be happy to assist.

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