Jersey Unreported Judgments

Costs - application for a protective costs order

[2020]JRC065

Royal Court

(Samedi)

23 April 2020

Before     :

Sir William Bailhache, Commissioner sitting alone

 

Advocate C. E. Davies for the Minister.

Advocate R. C. L. Morley-Kirk for the First Respondent.

Advocate J. N. Heywood for the Second Respondents

judgment

the commissioner:

1.        This judgment concerns a protective costs order made in an application by the Minister under the Capacity and Self-Determination (Jersey) Law 2016.  The protective costs order was made with reasons reserved and whereas the detailed judgment in relation to directions is a file and parties judgment, I have considered that it would be useful to publish, redacted as necessary, a separate judgment on the issue of costs.

The nature of the application

2.        In November 2019 the Minister brought an application for a best interests decision on behalf of the First Respondent ("the Patient").  The Second Respondents are the parents of the Patient ("the Parents").  The best interests application was at the outset concerned only with where the Patient should live but, latterly was also concerned with whether any restrictions ought to be placed on the Parents access to him, in his best interests.  The Parents instructed counsel privately at the beginning of the application but it became apparent that the proceedings were going to be longer and more complicated than had first been envisaged.  In addition, Advocate Morley-Kirk was appointed to represent the Patient at public expense.  The position therefore was that in these proceedings concerning a best interests decision for a person who could not afford a lawyer, both the Minister and the Patient were represented at public expense, while the Parents, who were rightly convened to the application by the Minister and whose views are of importance in the Court's consideration of the best interests decision either would have to be unrepresented or would have to pay for their own representation.  At the present time, it certainly does not seem that the Patient is likely to be able to take the decision for himself, although that is a matter which will have to be resolved at the final hearing, and he does not have the wherewithal to pay for his own representation.

3.        In making his application for a contribution to their costs from public funds, Advocate Heywood said that the Parents had made no application for legal aid because they were not eligible on financial grounds to receive it.  He emphasised that the Parents were not in these proceedings for personal gain, and the Minister had brought them.  His firm had agreed to act for the Parents at Factor A rates, without uplift, but nonetheless it was clear that the proceedings would be extremely expensive.  He submitted that this was only the second case where a best interests decision had to be taken on behalf of a person unable to take the decision himself or herself, and there was a public interest in settling how such applications are to be dealt with.  The application was therefore made for a protected costs order on the authority of Flynn v Reid [2013] (2) JLR 280. Recognising that the Court was likely to give consideration to whether this was simply a private interest case, he submitted that the interest of the Parents was clearly a private interest but there was no gain for them.  It was the best interests of their son which was their interest as well, and he relied on the fact that in Flynn v Reid the Court had accepted that a private interest was not an absolute bar to such an order.

4.        It was a jurisdiction which should be used sparingly, but he submitted that it should be used in this case.  It did not seem right that the only parties to face the burden of meeting their own costs were the Parents.  Advocate Heywood also submitted that this was an early case in the context of best interest decisions, and accordingly it could not be anticipated that there would be a protective costs order in every case.  It would depend upon the way in which the principles were developed by the Court.

5.        Both the Minister and Advocate Morley-Kirk were neutral on the question of costs.  Advocate Davies accepted that the present case was very like public law children's cases, which were funded at public expense, but she noted that there is no Court approved panel of lawyers in mental health cases as there is in the public law children's cases.  Furthermore there were likely to be a number of other cases coming before the Court where best interest decisions were sought, and in those circumstances the principles which were laid down might well have a broader application than Advocate Heywood had submitted.

Discussion

6.        I start with the decision in Flynn v Reid.  In that case a protective costs order was made by the Court in relation to an appeal from the Court's decision over the plaintiff's claim against the defendant for compensation.  The parties had lived as man and wife, and had two children but were never married.  In 2001, the defendant purchased a property which the parties considered to be their family home, and the purchase was partly funded by the defendant and partly funded by a bank loan taken out by plaintiff and defendant jointly.  The property was bought in the sole name of the defendant because the plaintiff lacked housing qualifications.  The plaintiff had initially made contributions to the repayment of the loan, but on their subsequent separation, the defendant remained in the property and made all loan repayments until it was sold in 2011.  The Royal Court made a costs order by which the defendant was ordered to pay 60% of the plaintiff's costs with a cap of £16,000, and the plaintiff was ordered to pay 40% of the defendant's costs with a cap of £8,000.  Both parties were legally aided, and the plaintiff appealed, with leave, against the costs order.

7.        The Royal Court made the protective costs order in relation to the appeal because although these were private law proceedings, the approach of the Royal Court to costs orders where a party was legally aided was one of public importance on which the Court considered it was in the public interest that there should be full argument before the Court of Appeal.  It was highly probable that if the order were not made, the risks for both parties of appealing the costs order would have been so high that it would not have been pursued.  The summary in the headnote continues:-

"The fact that the parties had a private interest in the outcome of the appeal did not render the protective costs order inappropriate, although it was unlikely that there would be many other protective costs orders made in private law proceedings because private interests would be more likely to dominate than the public interest. As to the Court's jurisdiction to make the order, to the extent that the order covered the costs of the application for leave to appeal, it had been made under Art. 2(1) of the Civil Proceedings (Jersey) Law 1956; to the extent that it covered the costs of the appeal itself (Art. 16 of the Court of Appeal (Jersey) Law 1961 providing that the costs of all proceedings in the Court of Appeal were in the discretion of that Court), it had been made under the Royal Court's inherent jurisdiction to add conditions to its order granting leave to appeal. Furthermore, the States could properly be ordered to pay the parties' costs notwithstanding that it was not a party to the proceedings."

8.        The Court founded its decision on the authority of R (Cornerhouse Research and Campaign against Arms Trade) v Serious Fraud Office Director [2008] EWHC 714 (Admin) and R (Cornerhouse Research) v Trade and Industry Secretary [2005] 1 WLR 2600, having regard also to R (Compton) v Wilshire Primary Care Trust [2009] 1 WLR 1436 and indeed to the other cases referred to in the judgment.

9.        By enacting the Capacity and Self-Determination (Jersey) Law 2016, the legislature created a new regime for dealing with those lacking capacity ("P").  It was intended to recognise that a person under incapacity some or all of the time was still entitled to participate in decision taking as far as possible and to have the respect of all with who he or she came into contact.  Part of that regime includes applications to the Court for a best interests decision in relation to P or his or her estate.  Such applications naturally can be divided into applications which affect P's person, and those which affect his or her assets.  Under the old law on curatelles, the curator took oath before the Royal Court to make the right decisions in relation to the body and property of the interdict, but this was changed by the Mental Health (Jersey) Law 1969, which conferred on the curator jurisdiction only over the interdict's property.  The advance of medical science means that there is an increasing probability of a wide variety of choice in relation to the treatment which might be given to P and in relation to the major decisions in P's life.  Sometimes such decisions will be controversial as between the doctors and the family.  It is entirely unsurprising that the legislature conclude that a regime for resolving the best interests of P should be enacted, and that this ultimately should sometimes involve the Court. The judicial process, however, does of course have a cost attached to it because lawyers will frequently be instructed to assist the Court in finding a just result.

10.      The costs rules can be a source of difficulty in this respect.  The possibility of an adverse costs order may inhibit the Minister from bringing the appropriate application, or conversely may inhibit the family from resisting an application which the Minister brings.  Even without contemplating the possibility of adverse costs orders, not all families have the means to instruct lawyers to put their case before the Court, or even if they have the means, they may be disinclined to use those resources in relation to a matter which has no possibility of providing gain for them.  I hasten to add that is not the case here but in theory some families could take that approach.

11.      The Minister has political responsibility for the budget of his Department and he may require that budget where external lawyers are engaged, but in practice he does have access to legal resource without charge through the Law Officers' Department.  Where an independent capacity advocate is appointed, as here, P also had access to the resources of the state for the purposes of advancing his or her case in the litigation.  It seems to me that there is something fundamentally unfair in holding that the Parents, who are appropriately convened to the application should if people of means, pay their own advocate and be at risk of an adverse costs order or, by reason of their impecuniosity be unable to pay for legal representation and advance their case.  That does seem to be an inequality of arms in relation to a public law matter, namely the best interests of P.

12.      In my judgment, cases such as the present are very like public law children cases - the similarity is that decisions are taken affecting the lives of those lacking capacity.  How as a society we treat the vulnerable defines us - caring or indifferent, sensitive or placing our own, often economic, needs first.  As with public law children cases, the views of the parents - and of course also their own rights under the European Convention - mean that convening the parents to the applications made by the Minister is appropriate.  Just as here, the parents are drawn into an argument before the Court which is not at least directly of their making, even if the need for the argument arises from their disagreement with the professionals.  Their views are appropriately before the Court - the Court is charged to make a decision which is in the best interests of P, and as we said In the matter of B [2019] JRC 158 at paragraph 17:-

"The views of a patient's family (particularly family members who have cared for him and hopefully will care for him, and who are close to the individual and know him best) are also extremely important to the best interest decision-making process.  They can play a crucial role in assisting the court to understand the individual and what his past wishes and feelings were, and what his beliefs and values would be if he now had capacity; but their views are also relevant as persons to be consulted in their own right - they are people who are "interested" in Ps welfare." 

13.      I do not accept Mr Heywood's suggestion that the parents should have their costs despite the fact that they have a private interest because in my judgment their contribution to the proceedings is as much a public interest contribution as that of the Minister.  The public interest is the care provided to people unable to care for themselves.

14.      I note that in public law children cases, the Court has settled a regime of reimbursement of advocates acting in such cases. This perhaps started with the decision in B v J [2008] JLR Note 28 where Sir Philip Bailhache, Bailiff, determined that in that complex private law case where, unusually, the Royal Court had decided to appoint a lawyer to represent the child, it was appropriate that the States should meet the cost of representation instead of the parents, and do so on an indemnity basis.  That was a form of protective costs order in a private law case, ensuring that neither parent as adversarial litigants faced the risks of having to pay for that lawyer's expenses.  That regime has now been expanded so that lawyers for parents in public law children cases are routinely appointed at the expense of the state on a basis of a scale of remuneration which has been agreed by the Jersey Law Society, and which applies regardless of the means of the parent.  Indeed there is no enquiry made into those means.

15.      For my part I see no reason to differentiate in principle between the interests of vulnerable children and the interests of vulnerable people lacking capacity.  In my judgment it is appropriate that where a best interests decision in connection with the person of P is the subject of an application to the Court, it is right that the public should accept that cost.  That conclusion is driven by the purpose of the legislation, and the similarity that these best interests decisions have with public law children decisions as noted above.  I am reinforced in that view on the facts of the present case where it seems to me to be quite unfair that the costs of the Minister and of the independent capacity advocate are met by the public, but the costs of the Parents would, absent an order being made, have to be met by them personally.  There seems to me to be no justice in such an outcome.

16.      I do however consider that there are some caveats which ought to be entered:-

(i)        A key element of the present decision is that the application has been brought by the Minister on behalf of the public for a decision as to the best interests of P, an application to which the Parents are appropriately joined because their voice should be heard to enable the Court to do justice.  This has the consequence that other best interest applications will not necessarily result in any form of protective costs orders.  For example, in Representation of Mr A [2019] JRC 200, the application was made by the attorney under a lasting power of attorney for authority from the Court to make gifts from B's estate to his children.  The application failed, but it is unclear what if any costs consequences arose in the case.  Similarly, in Re P [2019] JRC 002, the Court was concerned with a best interests decision on a delegate's application to make a will on behalf of P.  The application also failed, and it is again unclear what the costs consequences, if any, were.  Both these cases were monetary cases, not concerned with the person of the patient, and it may well be that different principles should apply in such cases.  The current decision does not deal with those cases, and argument in those types of case can if necessary, come forward for consideration on another day.

(ii)       It appears to me that in principle no costs orders should be made against parents who are joined to the process because the Court should have the advantage of their views and they should not be inhibited in giving them.  This is not therefore the type of case where the winner expects to receive costs and the loser expects to pay them.  Of course that does not preclude a costs order in exceptional circumstances, of which one example might be bad faith on the part of the parents, perhaps because they advanced their defence of the application not having regard to the best interests of P but for their own private interest.

(iii)      Similarly, in principle, one would not expect any application for costs to be brought against the Minister, should he be unsuccessful.  He should not be inhibited from bringing an application to the Court which seeks an order in the best interests of the Patient.  The fact that he has been given leave to bring that application is of course an additional support for him in that respect.

17.      Finally I have mentioned the similarity with public law children's cases.  I am told by Advocate Davies that there is at least the possibility of a number of other cases coming before the Court in similar circumstances to the present and so the costs issue is likely to arise again.  It appears to me that there would be some advantage in the development of a similar costs regime to that which applies in public law children's cases, namely a panel of lawyers approved for working in mental health cases and an agreed schedule of costs, and that this is something that might suitably be developed by the Judicial Greffe with the approval of the Bailiff in conjunction with the Jersey Law Society.

18.      The order made in this case was that the Parents should have a contribution from public funds to the costs which they have incurred in relation to the present application to the same extent as the costs of the independent capacity advocate, and these will be paid out of the court and case costs vote of the Judicial Greffe in the usual way.

Authorities

Capacity and Self-Determination (Jersey) Law 2016. 

Flynn v Reid [2013] (2) JLR 280. 

R (Cornerhouse Research and Campaign against Arms Trade) v Serious Fraud Office Director [2008] EWHC 714 (Admin). 

R (Cornerhouse Research) v Trade and Industry Secretary [2005] 1 WLR 2600

R (Compton) v Wilshire Primary Care Trust [2009] 1 WLR 1436. 

Mental Health (Jersey) Law 1969. 

In the matter of B [2019] JRC 158. 

B v J [2008] JLR Note 28. 

Representation of Mr A [2019] JRC 200. 

Re P [2019] JRC 002.