The Court of Appeal dealt with an appeal arising from a costs order made by the President in the Re G case.
The Re G case is an incredibly controversial one, which has now been before three High Court Judges and the Court of Appeal, and involves a Court of Protection application to protect the finances of a woman aged ninety four from carers who were urging her to change her will in their favour OR a Local Authority dragging a ninety four year old into Court and trying to control her life and gag and silence her (depending on which side of the controversy you stand).
I summarised all the controversial litigation in this post here https://suesspiciousminds.com/2014/05/02/journalists-right-to-private-and-family-life-with-her-source/
In the very last batch of the litigation, the Mail on Sunday tried to become a party to the Court of Protection proceedings, wanting an input into the letter of instruction to the expert who would be considering whether G had capacity to make her own decision about talking to the Press or whether she did not; and also running the argument that the journalist had an article 8 right to private and family life with G (you might think that was a curious argument, but the President didn’t actually reject it)
At the end, the Mail on Sunday having lost in all of its applications, the Court ordered that the Mail on Sunday pay 30% of the costs of the Official Solicitor (let’s quickly remember that all of the Official Solicitors costs are met out of G’s estate, so this was a hearing that cost G money) and 30% of the costs of the Local Authority.
The Official Solicitor appealed that order, seeking 100% of its costs. The Local Authority did not appeal the order.
Re G (an Adult) by her litigation friend the Official Solicitor (costs) 2015
The Court of Appeal considered that the President had struck the right balance [Or certainly that it could not be said that he had been wrong]. Yes, the Mail on Sunday had lost all of their applications, and G’s estate had incurred costs as a result. But also, important (and previously unlitigated) issues of principle had been raised and now resolved to the benefit of public policy. Therefore, it was right that the Mail on Sunday pay some, but not all of G’s costs.
- Given the terms of the rule, the challenge to the President’s exercise of discretion is a bold submission. The President set out his reasons. He applied the framework set out in the rules. He identified those matters to which he gave weight. Given that he had concluded that the Official Solicitor had triggered ANL’s application and that he had not understood the public importance of the media’s general role, a proportionate order was an unsurprising outcome. An appeal against the exercise by a judge of his discretion faces a high hurdle. I shall give just one well known example of that hurdle as described by this court in respect of proceedings in this jurisdiction: Burchell and Ballard  EWCA Civ 358,  CP Rep 36 at  per Ward LJ:
“Appeals against orders for costs are notoriously difficult to sustain. That is because the trial judge has a wide discretion with the result that this court will only interfere with his decision if he has exceeded the generous ambit within which there is usually much room for reasonable disagreement or because, even more unusually, he has erred in principle.”
- One only has to consider the exercise of discretion in this case from a perspective other than the Official Solicitor’s to understand the point. It was reasonable for the media to raise an issue of public importance and the Official Solicitor failed to understand that issue. The letters written on behalf of the Official Solicitor were wrong and that was conduct before the application and within the proceedings. In this appeal Mr Patel seeks to explain the Official Solicitor’s stance by postulating that any journalist who intruded into G’s private affairs would have been unjustified given Cobb J’s interim declarations and the Press Complaints Commission Editor’s Code of Conduct, but that involves issues of fact which were not established. ANL’s response was wholly misconceived and that was conduct within the proceedings. ANL achieved one of the ends they pursued which was the issue of public importance relating to the role of the media that was triggered in the manner described.
- In my judgment the Official Solicitor succeeded on the application i.e. he won a battle but lost a point of principle. ANL lost the application but achieved clarity in relation to a point of principle. None of this should be taken to be an encouragement to the media to use misconceived applications of this kind but it seems to me to be impossible for the Official Solicitor to succeed in arguing that the President exceeded the broad ambit of his discretion by placing too much emphasis on one factor or too little emphasis on another such that he was wrong.
- There is one further argument that tells against the second ground of the appeal and that is whether and to what extent ANL should pay two sets of costs. It is submitted by Mr Patel that this was irrelevant. I disagree. The President cannot be said to have been wrong in principle to raise a question that is within the framework of the rules and the terms of rule 159 CoPR. In doing so he apprehended a general principle applied from the administrative law context. There is ample authority for the proposition that multiple representation where there is no significant difference between the arguments of parties on an application is to be discouraged by a limitation in costs. See, for example, the proposition cited with approval by Lord Lloyd of Berwick in Bolton MDC v Secretary of State for the Environment and Ors  1 WLR 1177 at 1178:
“In my judgment in circumstances such as these where the issues argued on behalf of two or more respondents are identical, the court should be disposed to make only one order for costs”
- The President would have had that principle well in mind given his decision in R (Smeaton) v Secretary of State for Health  2 FLR 146 at 245 where he overtly applied the principle.
- For these reasons I concurred in the dismissal of the appeal. At the conclusion of the proceedings the court expressed its strong view that this appeal should not have any adverse financial effect upon the assets of G. The Official Solicitor has considered that view and I am grateful to him for his confirmation that G will not bear the costs of this appeal.
I was wondering the other day what had finally happened with this case. I still don’t know, but there must have either been a hearing, or be one coming up soon.