The (indemnity) cost of getting it wrong
The Court of Protection team at 39 Essex Chambers analyse the award of indemnity costs against a local authority for breaching a disabled woman’s rights.
The ruling in Somerset County Council v MK  EWCOP B1 (HHJ Marston) is the costs decision following judgment on the substantive issues in the earlier case of MK v Somerset County Council  EWCOP 25.
As a reminder, in that case, the judge made findings of extensive breaches of the Convention rights of P, a young woman with severe learning disabilities and autism, and her family, by Somerset County Council, in a highly critical judgment. The judge then went on to determine costs in a judgment handed down on 30 January 2015, but which has only just made its way onto Bailii.
The general rule is that there is no order as to costs in proceedings that concern P’s personal welfare. By rule 159 (as it stood at the time of the decision), the court could depart from the general rule:
“if the circumstances so justify and in deciding whether departure is justified the Court will have regard to all the circumstances including:
(a) The conduct of the parties;
(b) Whether a party has succeeded in part of its case even if it has not been wholly successful; and
(c) The role of any public body involved in the proceedings.”
MK and her mother, father and grandmother claimed their costs against Somerset County Council in view of the terms of the judgment and because of the “significant degree of unreasonable conduct” of the local authority both before and during the proceedings. The judgment criticised almost every aspect of the local authority’s conduct before its concession. The reality is that if the local authority had investigated the case properly, the whole set of hearings would have been unnecessary.
The local authority made two submissions as to why costs should not be ordered against them. First, if the local authority had brought the case to court much earlier there would have been so much less material for the best interests hearing to have to analyse. Second, that the local authority and others would be inhibited in future from pursuing appropriate cases if they thought that if they got it wrong there would be an order for costs against them.
The judge rejected both arguments. First, the local authority chose to pursue the factual allegations which failed on almost every point. Second, if a local authority fights out a reasonable case but loses, it will be protected by the normal rule that there is no order for costs of the proceedings.
In this case, the conduct of the local authority amounted to “a significant degree of unreasonableness” which justified costs on an indemnity basis.
This case, along with others such as Essex County Council v RF  EWCOP 1, demonstrates the disastrous and costly consequences that can flow from misguided actions taken on the basis of safeguarding concerns.
It is important that local authorities gather as much cogent and substantiated evidence as possible before taking drastic steps such as removing someone from their home and depriving them of their liberty. This is especially important since the advent of the Care Act 2014 which places additional safeguarding duties on local authorities but provides no additional corresponding powers.
As this case shows, local authorities can be heavily penalised in costs where allegations are ultimately unsubstantiated and actions have been taken without lawful authority. This is the first reported case of which the editors are aware in which indemnity costs have been awarded against a local authority, but we anticipate that it is not likely to be the last.
It should be noted that Rule 159 has been amended since the decision was handed down to include in amplification of Rule 159(a) that the court can take into account in relation to ‘conduct’ any failure by a party to comply with a rule, practice direction or court order.
This article was written by the Court of Protection team at 39 Essex Chambers