Unusually, this applicant had to pay costs in a Property and Financial Affairs case – the penalty for wasted work

By Georgina Baidoun, 19th August 2022

The CourtServe listing for this case was tweeted by the Open Justice Court of Protection Project like this:

Having acted as Court of Protection Deputy for my mother’s Property and Financial Affairs, and having been threatened by the Public Guardian with my removal (otherwise known as ‘discharge’), I decided to ask to observe this case. It wasn’t clear whether it concerned a Property and Financial Affairs Deputy or a Health and Welfare Deputy, but I was in luck because it was Property and Affairs and, this being my third time as an observer, I felt reasonably confident that I would understand what was happening.

The session was late in starting – but I now understand that is not unusual, so I waited patiently until suddenly everyone was on screen and Circuit Judge HHJ Vavrecka was asking me to acknowledge my presence! Fortunately, I had already learnt that the court prefers to be able to see everyone in attendance, so I had left my camera on and just had to struggle to unmute. There was one other observer who responded with her camera off and was asked to turn it on. The judge made a general statement about not recording the proceedings or doing anything that would identify the participants, to which we agreed.

To a considerable extent I was wrong to think my experience would be helpful, because the case was largely concerned with court procedure, about which I still know next to nothing. In order to write this, I have sometimes had to search for background information, which has had the added benefit of illuminating some of my own experience. 

The case made against the Deputy by the applicant – an unrepresented lay person who was as far as I can tell a friend or family member of P – was completely unsubstantiated, which turned out to be the nub of the matter.

Background to the hearing

I wasn’t sent a Transparency Order (I’ve now observed 3 hearings and never seen one), nor was I offered a copy of the position statement, and my request to the legal team after the event was not successful. 

The judge helpfully opened the hearing by outlining the main events prior to this final hearing but I needed what was said later in court to fill out some of the details and I still have some uncertainties.

In 2019, P was diagnosed with dementia. I found out nothing else about P except that she was a woman.

In 2020, P came to the attention of social workers. According to the applicant, he attended a meeting in October that year where the decision seems to have been made that P lacked capacity to manage her property and financial affairs and that it was necessary, therefore, to apply to the Court of Protection to appoint a Deputy. The applicant said he disagreed with the decision but was outnumbered. I found out nothing about the applicant except that he was a man and was in frequent contact with P.

In January 2021, the applicant claimed that “he had had P reassessed” and that she was deemed to have capacity. I believe he said that he “then applied for a Lasting Power of Attorney” (but it would have been P who completed the application).

In June 2021, the Court of Protection appointed a Deputy. The Deputy was in court but was represented by her barrister, Simon Hunter of Three Stone Law, and she did not participate in person.

In September 2021, the applicant applied to the Court of Protection asking that another capacity assessment be carried out. He also asked that the Deputy should be replaced but did not put himself forward as a replacement. 

In January 2022, the case was allocated to a regional court and a Dispute Resolution Hearing was arranged.

In April 2022, an unsuccessful Dispute Resolution Hearing took place before District Judge Moses, as a result of which it was ordered that P’s General Practitioner should conduct another capacity assessment (which had now been done) and that the applicant should set out details of his allegations of misconduct against the Deputy. The applicant was given until 26 May 2022 to produce his evidence and the Deputy would then have an opportunity to respond. The applicant did not produce his evidence. He now claims that at the Dispute Resolution Hearing and later he had said that he did not want the case to continue, but Judge Vavrecka was clear that no formal application to withdraw the application had been made.

On 10 August 2022, the day of this final hearing, the Deputy had filed a position statement (not made available to me) asking for the application to be dismissed and full costs of £9,293.40 to be awarded against the applicant.

At the final hearing (10^th August 2022)

The Deputy’s barrister told the court that, at a meeting immediately before the hearing, he had refused the applicant’s request for the hearing to be delayed. The applicant had also asked to be made joint Deputy with the current Deputy and this too had been refused.

The applicant stated that he disagreed with the GP’s assessment of P’s mental capacity. He said that P has “good and bad days” and, also, doesn’t want to talk to strangers about her financial affairs.

Judge Vavrecka responded that the GP had been trained in the type of assessment required and that the form (COP3) on which the findings were reported gave space to say whether it was possible that capacity could change. The GP had made it clear that P does not have capacity to manage her own financial affairs and that capacity would not be regained.

Judge Vavrecka stated that it appeared that the applicant had had no intention of complying with Judge Moses’s order at the Dispute Resolution Hearing and that, if he had said so at the time, a large part of the costs of the case could have been avoided. In response, the applicant claimed that he had made his position clear and had said that he could not provide evidence of his claims because no-one would support him. He reiterated his request to be partner in a joint Deputyship on the grounds that he knew and understood P and her affairs better than anyone and saw her frequently. The same could not be said for the current Deputy.

Judge Vavrecka replied that knowledge of P was not a necessary qualification for a Deputy. The important qualification was a proper understanding of her property and financial affairs and an ability to manage them. The applicant had claimed that the currently appointed Deputy was dishonest and incompetent but had produced no evidence and had, in fact, expressed a desire to work with her, which appeared to be contradictory. It would clearly not be in P’s best interests to have two deputies who were in conflict: “a recipe for further applications to the court”.

The judge also pointed out that Deputies have to report to the Office of the Public Guardian (OPG), and their behaviour can be investigated if complaints are made against them. It was not part of the current hearing to enquire into any communication the applicant had already had with the OPG.

Judge Vavrecka dismissed the case.

Costs

The next part of the hearing concerned costs.

Judge Vavrecka referred to §19.2 Court of Protection Rules 2017: “Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings, or of that part of the proceedings that concerns P’s property and affairs, shall be paid by P or charged to P’s estate.“

§19.5 Court of Protection Rules 2017 provides for departures from the general rule.

19.5.—(1) The court may depart from rules 19.2 to 19.4 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances including—

(a) the conduct of the parties;

(b) whether a party has succeeded on part of that party’s case, even if not wholly successful; and

(c) the role of any public body involved in the proceedings.

(2) The conduct of the parties includes—

(a) conduct before, as well as during, the proceedings;

(b) whether it was reasonable for a party to raise, pursue or contest a particular matter;

(c) the manner in which a party has made or responded to an application or a particular issue;

(d) whether a party who has succeeded in that party’s application or response to an application, in whole or in part, exaggerated any matter contained in the application or response; and

(e) any failure by a party to comply with a rule, practice direction or court order.

The judge considered that the conduct of the applicant justified departure from the general rule. There was no evidence that he had tried to ‘vacate’ (withdraw his application) until he had been faced with the prospect of paying costs.

There was then the question of deciding whether the applicant should pay the full costs, as requested by the Deputy, or whether the costs should be apportioned. The Deputy, through her barrister, agreed with apportioning the costs so that those arising before the Dispute Resolution Hearing should be charged to P and those arising after that hearing should be charged to the applicant. Without detailed costings, it was then agreed the judge would split them ‘on a summary basis’. The applicant was therefore required to pay £6,000, including VAT.

The applicant said that he did not have £6,000 and Judge Vavrecka suggested that he agree a payment schedule with the Deputy outside of the court.

Conclusions

I have now observed two cases where the appointment of a (professional) Deputy has been opposed by friends or family who were not initially prepared to perform the role themselves. In the first case, two members of the family eventually decided that they would make an application. In this second case, the friend or family member’s belated request to be joined with the court-appointed Deputy was dismissed.

This seems to demonstrate a problem that might also explain why some people are not able to create Lasting Powers of Attorney. It is necessary to get someone you trust to agree to take over your financial affairs and this is not something with which many lay people are comfortable; it’s only when they see strangers doing it that the reality kicks in.

The two cases also demonstrate how ignorant many people (I would guess the vast majority) are of the work of the Court of Protection in this area, even when they begin to get involved in it. That ignorance proved costly in this case. 

Speaking from my own experience, I now realize that, when I started what seemed to be merely a bureaucratic exercise of the sort with which we are all familiar (tax matters, planning applications etc), I was in fact already in the foothills of fully fledged court proceedings that could seamlessly lead to actual court hearings. One thing I, and I believe the applicant here, did not understand is that you cannot simply inform the court that you want to desist with your application; you have to make a formal application to withdraw it. In my case, my application to withdraw was refused and I was at a complete loss as to why. I now realize that at least part of the reason might have concerned costs, as it did here.

Also, in the course of wondering why the applicant in this case got into such a costly situation, I checked to see what would happen if he had not turned up to the hearing, something I gathered he had contemplated. If I am right, the Civil Procedure Rules and Family Procedure Rules apply as follows:

PART 27 – HEARINGS AND DIRECTIONS APPOINTMENTS

(4) Where, at the time and place appointed for a hearing or directions appointment, one or more of the respondents appear but the applicant does not, the court may refuse the application or, if sufficient evidence has previously been received, proceed in the absence of the applicant.

From what the applicant said, I think another of his misconceptions was that the requirement placed upon him to produce evidence meant that he had to have witnesses. In the users’ guide, Court of Protection Made Clear it says: “Evidence is the narrative account of the events for (sic) which the applicant is asking the court to consider… ” (Section 8.18 of the revised Ist edition)

This account/evidence needs to be written on form COP24 which is entitled “Witness Statement” and says: “If you are filing written evidence with the court then it should be included in or attached to this form“.

I think there is scope for confusion here. Judge Vavrecka did say that the applicant had been advised to seek legal assistance and, with hindsight, it was advice that would have saved him a lot of money.

Georgina Baidoun was the lay Court of Protection Deputy for her mother’s Property and Financial Affairs until her mother died last year. Because of the difficulties she experienced with several applications to the Court, and with the Office of the Public Guardian in connection with her annual report, she has retained an interest in these areas, including attending recent Court of Protection Users Group meetings. She is keen to share her experiences in the hope that she can help others who have to engage with these institutions with very little help or guidance. She tweets as @GeorgeMKeynes