The inherent jurisdiction and costs

In Re PR (Application under the inherent jurisdiction: Costs) [2019] EWHC 2800 (Fam), Cobb J has confirmed that applications made in relation to vulnerable adults under the High Court’s inherent jurisdiction are governed by the Civil Procedure Rules when it comes to consideration of costs (and, by extension, in relation to all other procedural aspects).   On an application for costs following his earlier judgment made by the parents of the adult, Cobb J identified that “proceedings before the court under the inherent jurisdiction in respect of a vulnerable adult, albeit brought in the Family Division, are not categorised as ‘family proceedings’.”

In consequence, therefore, and unlike family proceedings (or proceedings in the Court of Protection concerning health and welfare), in which the general rule is that there is no order for costs, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party.

On the facts of the case Cobb J noted that:

14. The outcome of this application did not produce one or more obviously ‘successful’ party, nor one or more obviously ‘unsuccessful’ party (rule 44.2(2)(a)); it may be said that the proceedings achieved the Local Authority’s objective, but in the end resolved with no significant substantive order. Thus, there is no easy application of the ‘general rule’ (i.e. “that the unsuccessful party will be ordered to pay the costs of the successful party”).

15. I have acknowledged that cases of this kind raise extremely challenging issues for a local authority or other safeguarding agency. Indeed, this case is a paradigm example.

Having considered, inter alia, the urgency of the initial position, the way in which the local authority modified its position as the proceedings unfolded, and the limited potential for meaningful negotiation given the limited nature of disclosure to PR’s parents, Cobb J concluded that the proper order was no order as to costs.

By way of observation, that inherent jurisdiction proceedings are proceeding under the CPR only highlights the extent to which they should be the exception rather than the norm, as the CPR are set up for the adversarial resolution of disputes.  The processes of the Court of Protection (as reflected in the Court of Protection Rules) are “essentially inquisitorial rather than adversarial. In other words, the ambit of the litigation is determined, not by the parties, but by the court, because the function of the court is not to determine in a disinterested way a dispute brought to it by the parties, but rather, to engage in a process of assessing whether an adult is lacking in capacity, and if so, making decisions about his welfare that are in his best interests” (Cheshire West and Chester Council v P and M [2011] EWHC 1330 (COP) at para 52).


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