Riddle v NA [2025] EWCOP 39 (T3) raises questions about the fitness for purpose of a key plank of the costs provisions contained in the Court of Protection Rules.
The case took the form of an appeal against a decision of a District Judge refusing the costs incurred by Andrew Riddle, who had sought to be appointed the professional deputy for a man, NA, but whose application had not been successful because it was ultimately shown that NA had the relevant capacity.
The background facts were crisply summarised by Harris J thus:
6. NA is 56 years old. In 2003, he sustained frontal lobe damage as a result of an assault. The injury has a mild impact on his executive functioning, compounded by excessive alcohol use.
7. On 6th October 2022, Mr Riddle made a COP1 application seeking his appointment as a professional deputy for NA’s property and financial affairs. NA’s case was referred to him by CYC which had previously referred the matter to a firm of solicitors who had failed to progress the application. Mr Riddle is not legally qualified but has considerable experience acting as a professional deputy.
8. CYC made the referral to Mr Riddle on the basis that they believed NA lacked capacity to manage his affairs and was therefore in need of a Deputy to prevent further escalation into debt and to prevent the potential loss of all his assets. He was living in a state of neglect. CYC did not consider it appropriate for them to make the application because of the complexities of NA’s property and affairs and the existence of a potential conflict of interest given the most significant debt NA owed was council tax – a debt CYC were actively seeking to recover. They therefore referred the matter to a professional deputy to progress.
9. The COP1 application made by Mr Riddle was supported by a COP 3 capacity assessment completed by NA’s social worker, Lesley Stavridis dated 15th August 2022. That assessment concluded NA lacked capacity. NA filed a COP 5 opposing the application. In March 2023, NA entered alcohol rehabilitation treatment which was successful. Supported by Ms James [from the mental health charity “Mainstay”] he began addressing the various issues relating to his property and finances. The first hearing on Mr Riddle’s application came before District Judge Boorman in August 2023 when directions were made for the filing of further evidence. There followed three further Dispute Resolution Hearings.
10. In May 2024, the court ordered a s49 report to address NA’s capacity to make decisions about his property and affairs. In his report dated 24th June 2024, Dr Ormrod concluded:
In my opinion, at the time of my assessment, on the balance of probabilities, NA had the capacity to manage his property and affairs. I note that such a conclusion may be at odds with earlier assessments. However, in my opinion it is likely that there have been changes in NA’s levels of functioning as a result of his decision to stop drinking and the support he has received in the last year.
Mr Riddle accepted the conclusion of Dr Ormrod. On 13th September 2024, his application to be appointed as Deputy was dismissed.
Mr Riddle, however, sought the costs he had incurred. At first instance, his application was refused, with District Judge MacCuish holding that there should be no order for costs. Mr Riddle appealed.
His first ground of appeal was, whilst the District Judge had recognised that he had a wide discretion on costs, he failed to apply rule 19.2 (or indeed any of the rules under Part 19 of the Court of Protection Rules 2017) correctly or at all. He was successful on this ground of appeal, but it was a Pyrrhic victory, as Harris J went on to consider the question of costs for herself.
Harris J identified that the application fell within CoPR 19.2:
21. The Court is satisfied that an application for deputyship over “P’s” property and affairs, includes an application in which “P’s” capacity is disputed. “P” is defined within Rule 2.1 as including a person who is alleged to lack capacity. This application therefore falls within the general rule provided for by Rule 19.2.
That meant, therefore, was that the starting point was that the costs of proceedings should be paid for by NA.
Mr Riddle argued that:
22. […] Rule 19.2 serves a clear public interest in ensuring matters concerning vulnerable adults and the management of their property and affairs are brought before the court. If an application is successful, the order appointing the Deputy will typically provide for the costs of the application to be paid by P, either under the fixed costs regime (£1,204 + VAT) or, particularly if the application is contested, following a detailed assessment of costs. The public interest in ensuring matters of this nature are brought before the court underpins the reasoning of Lindley LJ in Re Cathcart [1892] 1 Ch 549, in which he awarded costs to P’s husband, although P was found to have capacity:
An inquiry into a person’s state of mind is not like an ordinary litigation, and whilst, on the one hand to obtain and prosecute such an inquiry is to inflict a grievous wrong, if there is no justification for it; yet, on the other hand, it may not only be justifiable but right to institute and prosecute such an inquiry, even though the result should be to establish the sanity of the person whose state of mind has been investigated. This view has long been acted upon by the tribunals of this country, and is sanctioned by Legislature.
This approach to costs in matters of property and financial affairs, even if the application is ultimately unsuccessful, ensures people are not deterred from making applications in good faith by being penalised in costs.
Harris J acknowledged the starting point and the rationale that might underpin it.
23. […] However, in determining whether the Court should depart from the general rule in Rule 19.2, and in considering all the circumstances of the case, the Court is not persuaded, as argued by Mr Riddle, that where an application is made in good faith and accompanied by supportive capacity evidence, the circumstances would have to be “truly exceptional” to justify departure from the general rule. Such a highly restrictive approach to Rule 19.5 and the Court’s overarching discretion in matters of costs is to place an unhelpful gloss on the rules.
24. In the Court’s judgment, the matters of public interest which underpin Rule 19.2 and give weight to the starting point that the applicant’s costs should be met by P, whilst important, should not be regarded as almost determinative. It was urged upon the Court that the COP’s jurisdiction is not adversarial; it is about finding the right outcome for P. The same principles apply to welfare applications – where the court very clearly undertakes an inquisitorial, welfare focused enquiry – but the usual rule under Rule 19.3 is for there to be no order as to costs. Mr Riddle has not faced any application by NA for his costs to be met, an order which would arguably penalise Mr Riddle for bringing the application. However, for Mr Riddle to seek an inter partes order against P goes beyond what is deemed as necessary in welfare matters to ensure applications are properly placed before the court.
Another line of argument was put forward by Mr Riddle:
25. It was also urged upon the court that professional deputies such as Mr Riddle play a vital role in ensuring these applications are made, particularly where P has no family to safeguard their financial interests. It was suggested that a failure to award professional deputies such as Mr Riddle their costs will lead to real gaps and difficulties in the system. The court was told that a process has developed whereby local authorities – due to a lack of expertise, resources or a conflict of interest – will refer these applications out to professional deputies who will make the necessary COP1 application. If those deputies are at risk of not recovering their costs, it is suggested they are likely to decline making the applications, placing the burden back on already over-stretched local authorities. The result of that will be delays for P and a risk that P will be left unprotected from exploitation whilst the local authority progresses an application.
This fell on equally stony ground:
26. The Court is again unpersuaded by that argument. The evidence before the Court is that upon such a referral being made by a local authority, the proposed professional Deputy will triage the application, reviewing all the information provided by the local authority or charity, and consider whether they are satisfied the application should be made. The proposed Deputy is under no obligation to make the application. If the proposed Deputy is satisfied on the information provided that the application does have merit, they will make the necessary COP1 application. They will however do so knowing that in accordance with the rules they are taking a calculated risk as to whether the Court will disapply the usual rule in 19.2. The Court does not have the benefit of any system-wide data on this issue. However, although there are a number of reasons why an application for Deputyship may not result in the applicant’s appointment, the evidence before the Court is that such an event will be relatively rare.
27. Mr Riddle tells the Court that this is the first time he has found himself in the position that an application for Deputyship has failed and he has not been awarded his costs. CYC similarly tell the court that it is rare for them to make a referral out to a Deputy, and that they have never experienced a case where the application for Deputyship has failed. The risk – whilst it undoubtedly exists – is therefore, on the limited evidence before me, very small, and one which any professional Deputy can perhaps reasonably be expected to mitigate against within the overall structure of their business. The Court is not persuaded that without what would amount, in effect, to a solid assurance that applicants in the position of Mr Riddle who have acted in good faith will recover their costs of even unsuccessful applications, there is a risk of systemic collapse.
Perhaps most importantly, Harris J identified:
28. In any event, if the risk of failing to recover their costs were to lead to professional Deputies refusing to make such applications, the Court is not persuaded the answer to such a systemic problem is that the vulnerable adult, P, should bear the burden of those costs, as opposed to alternative solutions being found. Local authorities pursuant to their safeguarding duties and responsibilities would need to assume the burden of bringing such applications before the court, ensuring P would not fall through a safeguarding gap. Alternatively, the public authority could choose to enter into contractual arrangements to underwrite the costs of professional deputies such as Mr Riddle to bring the applications on their behalf. That may seem a fairer solution than imposing the costs burden on vulnerable adults such as NA.
This therefore meant that the starting point remained that Mr Riddle should recover the costs of his application. However, that was only the starting point:
29. [….] in considering all the circumstances of the case and whether it should depart from the general rule in 19.2, the balance should not be unduly and disproportionately weighted against P. In London Borough of Hillingdon v Neary[2011] EWHC 3522, Jackson J held that when considering whether to depart from the general rule on costs, “each application must be considered on its own merit or lack of merit with the clear appreciation that there must be good reason before the court will contemplate departure from the general rule. Beyond that, as MCA s 55(3) makes plain, the court has “full power” to make the appropriate order.
The first sub-set of considerations provided for in COPR r.19.5 in deciding whether there should be a departure from the general rule concerned conduct:
31. Conduct: The court is satisfied that Mr Riddle acted in good faith in making the application. A number of capacity assessments were carried out by CYC prior to the application being made, which save for one, concluded NA lacked capacity to manage his property and affairs. Although the issue of NA’s capacity was not entirely straight forward, the application was supported by a detailed COP 3 assessment conducted by his allocated social worker. It was, on the basis of the evidence available at the time, entirely reasonable for the application to be made. The local authority regarded the application as necessary given their safeguarding concerns for NA – albeit they could have brought the application themselves and it was not necessary for it to be made by Mr Riddle.
32. It is furthermore urged upon the Court that the application was motivated only by NA’s best interests and for no personal motive or gain. In this regard, whilst the Court is satisfied the application was made in good faith, Mr Riddle is not carrying out a charitable public service. He acts in the course of his business for profit. Ultimately, he seeks appointment as a professional deputy to further that business. The Court expresses some concern regarding the adversarial tone and hostile nature of some of the comments made by Mr Riddle towards NA in his witness statements of 9th February 2024, 6th March 2024 and 14th May 2024. They do not sit easily with the claim that Mr Riddle acted only in NA’s best interests or the fiduciary nature of the Deputy role to which Mr Riddle was seeking appointment. However, the Court is not satisfied that Mr Riddle’s somewhat adversarial approach amounted to conduct that crossed a line, such that it should have a material bearing on costs.
33. Turning to NA’s conduct. NA opposed the application throughout. Whilst Mr Riddle makes some criticism of the way in which NA conducted the proceedings and the delay that resulted, it is not suggested it constitutes the kind of litigation misconduct that might sound in costs. NA remains a vulnerable adult who has acted as a litigant in person throughout. That is despite it being the applicant’s position that NA lacked capacity to conduct his property and financial affairs. Nevertheless, with the support of Ms James he has engaged fully in these proceedings. The late submission of evidence by NA resulted in two hearings being adjourned and re-listed. Whilst that caused delay it did not result in costs being wasted.
34. Having considered the various orders made over the last two years of litigation, the Court is satisfied the delay and protracted nature of these proceedings resulted from case management decisions intended to gather further information regarding NA’s progress, and consequently the late direction to obtain a s 49 report on the question of capacity.
Ultimately, therefore, conduct was not a relevant consideration. Harris J then turned to ‘success’:
36. Success: Mr Riddle failed in his application to be appointed Deputy. Given the nuances in NA’s cognitive presentation and the fact NA made clear from the outset that the application would be opposed, Mr Riddle must always have been aware there was a risk the application would fail. NA was entitled to the presumption of capacity. The burden did not rest on him to prove capacity. No interim declaration that NA lacked capacity was made. Within that context, Mr Riddle chose to take the risk of making and continuing to pursue the application. Mr Riddle carries out his business as a professional deputy for profit. That is not to criticise his business, but he is not in any way obliged to make such applications. He has to take some responsibility for any litigation risks he chooses to assume.
37. Ultimately, NA was successful in defending the application on the basis he had capacity, and the Court therefore had no jurisdiction to appoint a Deputy. The principle embedded in the Civil Procedure Rules 1998 Rule 44.3 that costs follow the event does not apply in the Court of Protection. However, as a matter of natural justice, it may appear perverse that NA should pay the costs of Mr Riddle – who is a complete stranger to him – for an application he did not invite, always opposed, had no choice but to respond to, and ultimately was successful in defending. Unlike Mr Riddle, NA did not choose this litigation. He is not at fault in any way. This has to be a weighty consideration in determining the issue of costs.
The final consideration provided for in COPR r.19.5 was:
38. The role of any public body in the proceedings: The court is grateful to CYC who attended the appeal and made representations to assist the court. They explained how the referral to Mr Riddle came about and their extensive involvement with NA prior to the application being made. It is clear they gave no consideration to the question of how Mr Riddle’s costs should be met and whether, as the referring public authority, they should assume any responsibility for those costs should the application fail. In light of the issues raised in the appeal, they confirmed at the close of submissions that moving forwards they would take responsibility for making applications for the appointment of property and financial affairs deputies. The fact an application is made by the local authority does not prevent a professional deputy being appointed by the Court.
Overall, therefore:
39. Having considered all the circumstances of the case, the Court is satisfied that it is justified in departing from the general rule in the Court of Protection Rules 2017, Rule 19.2. Whilst it is acknowledged Mr Riddle acted in good faith and spent considerable time and resource trying to progress the application, the Court is satisfied that the application having failed there should be no order as to costs. NA, a vulnerable adult the Court of Protection is designed to protect, has gained little to no benefit or advantage from this application being brought. Any advantage is far outweighed by the costs application he now faces. In stark contrast to Mr Riddle, NA was not in a position whereby he could protect himself against any resulting exposure to costs. Mr Riddle chose to bring the application. He was able to assess the litigation risks. The responsibility to mitigate his exposure to costs should ultimately rest with him.
40. The fair and just order is that there be no order for costs.
Finally, Harris J noted an issue in relation to the assessment of costs in respect of litigants in person:
41. The court is told that Mr Riddle’s costs are in the region of £10,000. No schedule has been produced to explain how those sums have been incurred. During the course of the appeal hearing, the Court raised with Ms Collinson how Mr Riddle as a non-legally qualified professional deputy, so essentially a litigant in person, could claim such a substantial sum. He is not a Deputy. There is no order authorising him to incur costs in the management of NA’s affairs.
42. I am grateful to Ms Collinson who following the appeal hearing filed a further note dealing with how legal costs claimed by Mr Riddle as a litigant in person, if an inter partes costs order was made in his favour, could be quantified. There would appear to be no clear authority on the point. Neither s 1 of the Litigants in Person (Costs and Expenses) Act 1975 or rule 46.5 of the Civil Procedure Rules apply. The limited case law on the point is conflicting. In London Borough of Hounslow v a Father[2018] EWCOP 23, District Judge Eldergill found that a LIP is entitled to recover their reasonable expenses but ‘is not entitled to a fee or remuneration’. In JMH (by her litigation friend AB) v CFH [2020] EWCOP 63, HHJ Evans-Gordon declined to follow the decision of DJ Eldergill, holding that recoverable costs are those ‘that any litigant in person could recover and those are the disbursements/court fees and any time costs recoverable on a detailed assessment’.
However:
43. The Court is mindful that NA is not represented, and it has not therefore had the benefit of full legal argument on this potentially very significant point. The issue no longer arising on this appeal, the Court therefore expresses no view upon it.
Comment
There has for a long time been a rumbling feeling of dissatisfaction (certainly at this end) about COPR r.19.2, albeit often for another reason, namely that it allows familial disputes to be played out at P’s expense. This case highlights another reason why it can be problematic. Had this been a case about whether NA had capacity to make decisions about relevant welfare matters, the starting point would have been no order as to costs, and it is not surprising that Harris J felt that this case was very much in that zone. It is perhaps not entirely surprising that the only authority Mr Riddle could find to support the proposition that he should be reimbursed from his costs dated from the 19th century, in a very different world. The reality is that in a situation such as this the costs of ensuring that NA’s capacity was appropriately investigated and (if he lacked such capacity) appropriate steps taken in his best interests should be (and was) seen as an offshoot of the safeguarding obligations of the local authority, obligations which are not conventionally understood to be deployed at the financial expense of the person. It was unfortunate that the potential for the application to be refused had not been contemplated by either CYC or Mr Riddle, and that this then redounded upon Mr Riddle personally, but it is not surprising that Harris J was unimpressed with the suggestion that the solution should be that NA should pay for the privilege of the unsuccessful application.
Until and unless r.19.2 is amended, Harris J’s refusal to place any gloss on the rule in the manner urged upon her by Mr Riddle was undoubtedly helpful in terms of the message that r.19.2 is a starting, but not an end point.
Separately, and whilst it is entirely understandable why Harris J declined to consider the question of costs for litigants in person, it is unfortunate that he was not in a position to do, as it is question which undoubtedly merits definitive resolution.
