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 no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment may be identified by name or location and that in particular the anonymity of the 1st Respondent and members of his 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. COP 11822229

Neutral Citation Number: [2015] EWCOP 45 (Fam)
IN THE COURT OF PROTECTION

IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF M (COSTS)
Royal Courts of Justice,
STRAND,
London, WC2A 2LL.

23rd April 2015

B e f o r e :

MR JUSTICE BAKER

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BETWEEN
A LOCAL AUTHORITY
Applicant
-and-
(1) M
(by his litigation friend, the Official Solicitor)
(2) E
(3) A
Respondents
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Transcribed by :
JOHN LARKING VERBATIM REPORTERS
Suite 305, Temple Chambers,
3 - 7 Temple Avenue,
London EC4Y OHP
Telephone : 020 7404 7464

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MISS KERRY BRETHERTON appeared as counsel on behalf of the applicant
local authority, instructed by the local authority solicitor.

MR ANDREW BAGCHI Q.C. appeared as counsel on behalf of the
Official Solicitor, instructed by Miss Nicola Mackintosh

The Second and Third Respondents appeared in person

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J U D G M E N T
Thursday 23rd April, 2015

MR JUSTICE BAKER:

1.	I had hoped very much that today's hearing would mark the conclusion of these very lengthy proceedings in the Court of Protection concerning a young man hereafter referred to as “M”.  Unfortunately, however, it is clear that the one remaining issue cannot be resolved today, namely the identity of the person to act as a deputy for M's welfare and property and affairs.  That issue will be adjourned to be dealt with at another hearing, with directions as indicated in outline in the course of argument.  This short judgment deals with the second issue remaining for today: the question of costs.  

2.	As I said, these are lengthy proceedings, the centrepiece of which was a hearing lasting some 20 days last year at a fact finding hearing into serious allegations against the parents, in particular M's mother, E.  At the conclusion of that hearing I delivered a lengthy judgment (reported at [2014] EWCOP 33) in which my findings were summarised at paragraph 253 as follows:
		
	“The critical facts established in this case can be summarised as follows.  M has autistic spectrum disorder.  There is no evidence that his autism was caused by the MMR vaccination.  His parents' account of an adverse reaction to that vaccination is fabricated.  The mother has also given many other false accounts about M's health.  He has never had meningitis, autistic enterocolitis, leaky gut syndrome, sensitivity to gluten or casein, disorder of the blood brain barrier, heavy metal poisoning, autonomic dysautonomia (which, in any event, is not recognised in any classification of medical conditions), rheumatoid arthritis or Lyme disease.  As a result of E maintaining that he had these and other conditions, she has subjected M to numerous unnecessary tests and interventions.  He did have a dental abscess for which E failed to obtain proper treatment and caused him 14 months of unnecessary pain and suffering.  E has also insisted that M be subjected to a wholly unnecessary diet and regime of supplements.  Through her abuse of her responsibility entrusted to her as M's deputy, she has controlled all aspects of his life, restricted access to him by a number of professionals and proved herself incapable of working with the local authority social workers and many members of the care staff at the various residential homes where M has lived.  This behaviour amounts to factitious disorder imposed on another.  In addition, E has a combination of personality disorders - a narcissistic personality disorder, histrionic personality disorder and elements of an emotional unstable personality disorder.”

3.	Following that judgment, further hearings have taken place at which a care plan has been determined and implemented and M is now residing in a residential unit (a small home) where he is being looked after and by all accounts is doing well.  His mother, E, and father, A, told me in the course of the hearing that this was the most satisfactory placement from their perspective that he has stayed in the course of these proceedings.  It is good to know that M is making good progress.  There have been other details agreed in the care plan which it is unnecessary for me to refer to in the course of this short judgment.  

4.	My judgment was the subject of an appeal by E and A, who I should say have appeared for much of these proceedings acting in person and did so in the appeal.  Their application for permission to appeal was rejected by McFarlane LJ.  In giving his decision he said, inter alia, and concluded that:
		
	"There are no arguable grounds of appeal at all.  The proposed appeal is totally unarguable.  It is lacking any focus.  It fails to engage with the judge's judgment at all.  As I have indicated, it does not really mention it.  This appeal and the way it is couched is totally without merit."

	McFarlane LJ concluded his judgment with these observations:
		
"Awfully, sadly and tragically, these parents are engaged in a perception in this case, and the reasons that have led the judge to remove their much loved son from their care,  with a focus and a mindset and an understanding which is totally different from that of the local authority, the Official Solicitor and the court.  It is like a dialogue of the deaf. I hope that in the months to come after this watershed decision that there is no prospect of an appeal, that the parents can take stock and, if it is right, as the father says, that they understand that all they are accused of is over-caring for their child, they can sit back and perhaps accept some of the factual findings that the judge has made and engage in discussion with the local authority and the professionals to see if there is a way in which they can live their life in the future which does not expose M to the sort of circumstances in relation to medical treatment that led the judge to make the order that he did."

If I may say so, I endorse every word of that latter paragraph in McFarlane LJ's judgment, and it echoed what I said myself in the concluding paragraph of my own judgment, paragraph 254.

5.	Regrettably, there is as yet no indication of any change of attitude on behalf of E and A.  It is perhaps a little early to expect that, but I do hope that they give careful thought to the wise words of McFarlane LJ to which I have just referred.

6.	I now turn to the issues to be determined in this short judgment, which concern the question of costs.  The costs incurred in these proceedings have been very substantial.  The costs on behalf of the local authority are put at £150,000 and the cost on behalf of M through the Official Solicitor at £300,000 plus.  Those are on any view substantial figures, but not unusually large for a case of this sort and of this complexity.  In view of the very serious findings that I made, it would have been open to the local authority and the Official Solicitor to seek to apply for an order for costs against E and A, notwithstanding the general principle in the Court of Protection, as in the family courts, that the court will make no order for costs as a general rule when making decisions about the welfare of incapacitated adults or children.  The court retains a residual power, which it exercises occasionally, where one or other party has been found of conduct that can be described as "significantly unreasonable".  It may have been open to the local authority and the Official Solicitor to make an application for costs on that ground in this case.  They have, however, chosen not to do so.

 7.	Instead, the local authority has confined its application for costs to a much more modest sum, namely a one third contribution of the costs incurred in the instruction of five experts instructed in the course of the fact finding hearing: namely, Professor Williamson, Professor Carpenter, Dr Beck, Mr McKinstrie and Dr Adshead.  Dr Adshead was originally instructed by E and A as their expert - and I shall return to that point in a moment - and subsequently was taken over by the Official Solicitor and the local authority and, in respect of the latter element of her costs, the local authority and the Official Solicitor now seek a contribution.  The total sum sought by the local authority E and A in respect of those experts' costs is just over £13,000. 

8.	E and A have filed lengthy documents (position statements) in support of their own application for costs.  It falls really into the following categories.  First, they seek orders in respect of a number of matters of losses which they say they have suffered as a result of the conduct of the local authority in the early stages of these proceedings following its assumption of the role of interim deputy for M by order of District Judge Mort in August 2013 when he removed E as deputy.  Secondly, they invite the court to dismiss a further application which the local authority has indicated it wishes to bring, namely for the calling in of a bond to cover costs incurred by the local authority in respect of payment for M's accommodation at an earlier stage.  Those two elements of the dispute as to costs have been the subject of lengthy argument this afternoon, so that I could try to unpick the exact legal basis of the claim - a claim on the one hand by the local authority for a contribution for the calling in of the bond and the claim by E and A for payment by the local authority for losses incurred as a result of the actions of the local authority as interim deputy.  These issues were raised under the heading of "costs" but ultimately it seemed clear to me that they should not be categorised in that way.  They each, in a different way, relate to allegations made by one party against the other arising out of the conduct of the other party as deputy.  The local authority's claim, calling in the bond, relates to a complaint arising out of the way E conducted herself as deputy when she was deputy, and the claim by E and A for losses arising out of the conduct of the local authority relates to a period when the local authority was acting as interim deputy.  The total sums involved are relatively small but, nonetheless, the matter requires resolution.  At the suggestion of Mr Bagchi, which all parties ultimately endorsed, I am proposing that those matters should be transferred to be dealt with by the senior judge, who regularly deals with issues of this sort arising out of the allegations about misconduct by deputies.  I will not at this stage in this short judgment spell out any directions as to how that issue should be transferred to the senior judge, leaving it to the parties to agree those terms.

9.	Secondly, E and A claim the sum of about £4,000 in respect of travelling expenses incurred by them following the decision of this court to allow the application by the local authority for the removal of M from their care in the course of the proceedings on receipt of Dr Beck's report which gave rise to concerns that M was at risk of harm in the care of his parents.  That application was made without notice as a matter of emergency by the local authority upon receipt of Dr Beck's report and involved the removal of M to a residential unit some hundred miles or so away from E and A's home.  He remained there under order of the court for a period of some six months, up to and beyond the date of my fact finding hearing, and E and A continued to visit him regularly there, and they now claim the sum of just over £4,000 in respect of those costs.  Their case is that it was wholly unreasonable of the local authority to remove M from their home in those circumstances and that it was unreasonable and unnecessary for the court to endorse that removal and the continued placement of M there.  It is correct that they have proposed that M be moved to another residential unit closer to their home.  That proposal was opposed by the local authority at various points in the course of the proceedings and the court upheld the local authority's position.  E and A rightly point out that they are parents of a disabled child, they have limited resources and they say that in all the circumstances it was wholly reasonable for M to be removed and unnecessary and that in those circumstances they should now be entitled to recover their costs of travel.  

10.	The decision for M to move was a decision taken by the court.  It was not the subject of any appeal and, in the light of my findings in the lengthy fact-finding hearing which I have summarised at the start of this judgment, I consider the application made by the local authority for M's urgent removal to be wholly reasonable.  It is unfortunate, of course, that this necessitated his move to a residential home some distance away from his family home but, in my view, that was unavoidable given the urgent need for M to be removed from a place where he was at risk of harm, as I have found.  Accordingly, I regard the claim for a contribution to travel costs to be misconceived.  M had to be removed because he was at risk; he was at risk because of his mother's behaviour.  In those circumstances, any claim for costs for travel is without merit.

11.	Thirdly, notwithstanding the fact that I made significant and serious findings on all the allegations made by the local authority, E and A seek a substantial order for costs against the local authority, which they estimate or value at no less than £78,000.  That comprises of £67,000 for advisers' fees and, although they have not particularised it for this court, I understand it includes the costs of leading counsel's brief fee, who they instructed on their behalf at the hearing in March 2014, and a further sum of just under £11,000 for their own experts.  

12.	E and A have struggled to understand the basis upon which the court orders costs, and in their submissions in support of their application they have continued to assert that, notwithstanding all that has happened, everything that has occurred in this case is the fault of the other parties.  They continue to believe in the conspiracy theories that have pervaded their submissions at all points of the fact finding hearing.  It was wholly depressing to hear their submissions and to see yet further evidence of their state of mind that was so obvious to McFarlane LJ.  

13.	The plain facts are as follows.  The local authority made a series of very serious allegations against e that required extensive analysis by the court.  Allegations of factitious disorder are amongst the most complicated factually that this court has to grapple with.  The costs incurred, therefore, were understandably extensive.  At the end of the day, the local authority proved their case in almost every particular.  In those circumstances, it is inconceivable that any court would make any order for costs against the local authority or the Official Solicitor.  I very much regret that E and A have, as they have told me, found themselves now in considerable financial difficulty.  A told me that he had retired with a lump sum of in excess of £120,000, all of which has gone and, in addition, he has had to take on a mortgage on his house which was previously mortgage free.  I am very sorry in particular for both E and A about that.  The fault lies entirely with themselves, as I indicated in my fact-finding judgment.  So, E and A's application for costs is wholly misconceived and I reject it.

14.	I turn back to the local authority's application.  In many ways it seems to me that the local authority's application is a model of restraint.  It is entirely common when experts are instructed for the costs of those experts to be borne equally between the parties, and on one view it would be perfectly lawful for the order to be made as sought by the local authority.  A distinction can be drawn, however, it seems to me, between those experts who were jointly instructed (that is to say Dr Beck and Mr McKinstrie, on an order of this court at the first hearing before me on 3rd December 2013) and Dr Carpenter and Professor Williamson, who were instructed solely by the local authority and the Official Solicitor.  E and A took no part in that instruction.  E and A themselves, as I have already indicated, instructed their own experts and, by virtue of the order I have already made, they will have to bear the costs of that.  E and A had a number of complaints about the way in which the joint instruction of Dr Beck and Mr McKinstrie proceeded, and indeed it is their submission that both Dr Beck and Mr McKinstrie were in the pocket, effectively, of the local authority and the Official Solicitor, acting, as they say they did, in other cases on behalf of public bodies.  They persist in serious challenges to the good faith of those two experts, and indeed the others instructed by the local authority and the Official Solicitor, notwithstanding my findings - yet further evidence of their mind-set to which McFarlane LJ referred in his judgment.  Nonetheless, the fact is that both Dr Beck and Mr McKinstrie were jointly instructed.  

15.	Notwithstanding the fact that the local authority's application is couched in such reasonable terms, I have decided on balance to confine the order to those two experts who were jointly instructed and to exclude both Professor Williamson and Professor Carpenter and, in addition, Dr Adshead from the point when her instruction was taken over by the local authority and the Official Solicitor.  In doing so, I have in mind the heart-felt plea put forward by A and I also have in mind the wise words of McFarlane LJ, echoing what I said in my judgment, because I retain hope that, even at this late stage, there may yet be some form of coming together and a degree of cooperation between E and A and the local authority.  It may be just a hope but it is a hope, nonetheless, that I persist in.  Therefore, in all the circumstances it seems to me that the right order would be an order that E and A contribute one third of the costs of the two jointly instructed experts, Dr Beck and Mr McKinstrie.

16.	Finally, in the course of the hearing, and their written documents, E and A indicated that they wished to pursue a wasted costs order. As I already indicated last week, I can see no possible basis upon which a wasted costs order could be made against any of the professionals in this case.  I made that observation having regard to my observations about the professional conduct of those who represented the local authority and the Official Solicitor.  In the course of the fact-finding judgment, at paragraph 73, I listed at some length the exceptional steps taken by the other representatives, the legal representatives of the other parties, to assist E and A as litigants in person.  In his judgment in the Court of Appeal, McFarlane LJ observed, having regard to what I have set out at length at paragraph 73:

"It seems to me that every effort was made to accommodate the difficulties that they undoubtedly had."

	One of the regrettable features of this case has been the way in which, as the proceedings have continued, the attacks by E and A upon the professionals who sit behind them have intensified.  I recall that at no point in these proceedings have I had any cause to doubt the professional integrity of Miss Bretherton and those who sit behind her or Mr Bagghi and those who sit behind him.  On the contrary, their conduct has been exemplary in very difficult circumstances.  They have gone way beyond what would be expected in order to try to accommodate the litigants in person who sit on the front row before me.  E and A do not accept that, I fear, but that is my clear observation from where I am sitting.  That E and A have raised a claim for wasted costs is extraordinary.  It may be that E and A did not appreciate what was meant by a claim for wasted costs.  I do not know.  I have sought at some length to elicit what they understood that to mean when I spoke to them in the course of the hearing last week.  At any rate, the claim for wasted costs against the professionals in this case is hopeless and totally without merit.