Costs provisions in the Court of Protection: Implications for professional deputies and local authorities following the appeal decision in Riddle

Key facts

Mr Riddle, a professional deputy, sought to act for NA based on a supportive COP3 capacity assessment provided by the City of York Council (CYC) that NA lacked capacity to manage his property and affairs. CYC referred the matter to Mr Riddle, rather than pursuing the application themselves, citing complexities and potential conflicts of interest.

NA sustained frontal lobe damage following an assault in 2003. The impact on his cognitive functioning was exacerbated by NA's excessive alcohol use; he was in significant debt and at risk of losing assets. NA (a litigant in person) consistently objected to the application. Notably, during the course of proceedings, NA underwent successful alcohol rehabilitation treatment and a subsequent late direction for a s.49 report confirmed NA had capacity.

District Judge MacCuish dismissed the application on the evidence, making no order as to costs. Mr Riddle appealed the costs order but was unsuccessful. Ms Justice Harris upheld the District Judge's decision that NA should not bear the costs incurred by Mr Riddle in pursuing the (failed) application, departing from the usual costs rule under 19.2 that costs of legal proceedings concerning P's financial affairs are recoverable from P.

Financial burden of proceedings

Critically, the Judge determined it would be unjust for NA to bear the financial burden of proceedings concerning an application 'he did not invite, always opposed, had no choice to respond to, and ultimately was successful in defending'.

It was emphasised that if the proposed deputy is satisfied the application has merit, they make the application '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'

This has potential significant implications for professional deputies. The Judge was unpersuaded by Mr Riddle's argument about the vital role professional deputies play in ensuring these applications are made, where P lacks capacity at the material time and has no one to safeguard their financial interests. Although it was accepted cases like Riddle are rare, there is concern that failure to award costs in these circumstances (where an application made in good faith is unsuccessful) may discourage professional deputies from acting at all.

Perhaps most importantly the case highlights the requirement on local authorities to reassess their approach, emphasising that as safeguarding bodies, they should take responsibility for bringing such applications, particularly where vulnerable individuals may be exposed to adverse costs. However, placing the burden firmly on an already overstretched local authority is not without risk and the potential for delay in progressing such applications may well leave P unprotected.

The Judge made clear that professional deputies must carefully evaluate the risks of litigation, particularly where P actively opposes the application. The case emphasises that a deputy acting for profit, rather than charity or public service, bears responsibility for their decisions and must balance their fiduciary duties with the potential risks and costs of pursuing contested applications.

Opening the floodgates

While it was acknowledged that the risk of an adverse cost order being made in these circumstances is small, the case makes clear that CoP Rule 19.2 is a starting point; it is not carte blanche to litigate at P's expense.

It seems the potential for the application to be refused had not been properly contemplated by either CYC or Mr Riddle, even though the issue of NA's capacity was not straight forward.

The case reinforces the CoP’s case-by-case approach to costs. The court rejected the notion that departures from the general rule should only occur in "truly exceptional" circumstances. Many would agree that this approach ensures fairness and accountability, particularly for vulnerable individuals who successfully oppose applications and where it is considered P (who may have limited resources) should not be made to pay for the privilege.

The judgment serves as a stark reminder of the potential cost risks involved in contested CoP applications and the need for robust investigation and decision-making processes at the outset.

---

For more information or advice, please contact our Court of Protection team.