Having opened with Lewis Carroll, I’ll digress to Bruce Springsteen – if you practice in the Court of Protection – “You’d better not pout, you’d better not cry, you’d better watch out, I’m telling you why – the PLO is coming to town”
Cases A and B (Court of Protection : Delay and Costs) 2014
Mr Justice Peter Jackson (I know, it is supposed to be Jackson J, but when there are two Jackson J’s, that just causes confusion) gave a judgment in two linked Court of Protection cases that had gone on an inordinate length of time and cost an inordinate amount of public money, and ended with this exhortation to the President (who of course wears those two hats of President of the Family Division And President of the Court of Protection)
The purpose of this judgment is to express the view that the case management provisions in the Court of Protection Rules have proved inadequate on their own to secure the necessary changes in practice. While cases about children and cases about incapacitated adults have differences, their similarities are also obvious. There is a clear procedural analogy to be drawn between many welfare proceedings in the Court of Protection and proceedings under the Children Act. As a result of the Public Law Outline, robust case management, use of experts only where necessary, judicial continuity, and a statutory time-limit, the length of care cases has halved in two years. Yet Court of Protection proceedings can commonly start with no timetable at all for their conclusion, nor any early vision of what an acceptable outcome would look like. The young man in Case B is said to have a mental age of 8. What would we now say if it took five years – or 18 months – to decide the future of an 8-year-old?
I therefore believe that the time has come to introduce the same disciplines in the Court of Protection as now apply in the Family Court. Accordingly, and at his request, I am sending a copy of this judgment to the President of the Court of Protection, Sir James Munby, for his consideration.
Brace yourselves, Court of Protection folk, for “streamlining” and “case management” and “standardised documents” most of which will make you wish that you had taken a different career path – for example, rather than “Law” that you had decided to become a practice subject for CIA agents working on their interrogation techniques.
The Judge has a point here, we absolutely would not tolerate cases involving a vulnerable 8 year old taking 5 years* (*although see case after case of private law children cases that drag on for years and years) and costing this sort of money.
- In Case A, the proceedings lasted for 18 months. In round figures, the estimated legal costs were £140,000, of which about £60,000 fell on the local authority, £11,000 on a legally-aided family member, and £69,000 on the young man himself, paid from his damages.
- In Case B, the proceedings lasted for five years. In round figures, the estimated legal costs were £530,000, of which about £169,000 fell on the local authority, £110,000 on a family member (who ran out of money after three years and represented himself thereafter), and £250,000 on the young man himself, paid for out of legal aid.
- These figures are conservative estimates.
- Each case therefore generated legal costs at a rate of approximately £9,000 per month.
The Judge draws a comparison between taxi drivers and advocates (and not the usual “cab-rank principle” one)
- Just as the meter in a taxi keeps running even when not much is happening, so there is a direct correlation between delay and expense. As noted above, the great majority of the cost of these cases fell on the state. Public money is in short supply, not least in the area of legal aid, and must be focussed on where it is most needed: there are currently cases in the Family Court that cannot be fairly tried for lack of paid legal representation. Likewise, Court of Protection cases like these are of real importance and undoubtedly need proper public funding, but they are almost all capable of being decided quickly and efficiently, as the Rules require.
- In short, whether we are spending public or private money, the court and the parties have a duty to ensure that the costs are reasonable. That duty perhaps bites particularly sharply when we are deciding that an incapacitated person’s money should be spent on deciding his future, whether he likes it or not.
It is very hard to argue against that, and there can be little worse than burning through a vulnerable person’s money in order to protect them from financial or alleged financial abuse (see for example Re G, and the “94 year old woman subject to gagging order” case)
What drives up those costs? The Judge identified two major things – a search for a perfect solution, rather than a decent solution that carries with it some imperfections, and a tendency to deal with every concievable issue rather than to focus on what really matters.
A common driver of delay and expense is the search for the ideal solution, leading to decent but imperfect outcomes being rejected. People with mental capacity do not expect perfect solutions in life, and the requirement in Section 1(5) of the Mental Capacity Act 2005 that “An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.” calls for a sensible decision, not the pursuit of perfection.
Likewise, there is a developing practice in these cases of addressing every conceivable legal or factual issue, rather than concentrating on the issues that really need to be resolved. As Mrs Justice Parker said in Re PB  EWCOP 14:
“All those who practice in the Court of Protection must appreciate that those who represent the vulnerable who cannot give them capacitous instructions have a particular responsibility to ensure that the arguments addressed are proportionate and relevant to the issues, to the actual facts with which they are dealing rather than the theory, and to have regard to the public purse, court resources and other court users.”
- There is also a tendency for professional co-operation to be dissipated in litigation. This was epitomised in Case A, where the litigation friend’s submission focussed heavily on alleged shortcomings by the local authority, even to the extent that it was accompanied by a dense document entitled “Chronology of Faults”. But despite this, the author had no alternative solution to offer. The role of the litigation friend in representing P’s interests is not merely a passive one, discharged by critiquing other peoples’ efforts. Where he considers it in his client’s interest, he is entitled to research and present any realistic alternatives.
- The problem of excessive costs is not confined to the Court of Protection. In his recent judgment in J v J  EWHC 3654 (Fam). Mr Justice Mostyn referred to the £920,000 spent by a divorcing couple on financial proceedings as “grotesque”. In V v V  EWHC 1190 (Fam), I described the sum of £925,000 spent by a couple who had not even begun their financial proceedings as “absurd”. Yet everyday experience in the High Court, Family Court and Court of Protection shows that these are by no means isolated examples: in some case the costs are even greater. There is a danger that we become habituated to what Mostyn J called “this madness”, and that we admire the problem instead of eliminating it.
- The main responsibility for this situation and its solution must lie with the court, which has the power to control its proceedings.
I hope that if there is going to be a committee or working group on solving some of the problems in the Court of Protection that they can co-opt Mr Justice Peter Jackson and District Judge Eldergill onto it – both of them are extremely sensitive and sensible Judges and the Court of Protection could do a lot worse than have its future steered by them.