N & Anor v E & Ors [2014] EWCOP 27 (15 August)

Posted on Tuesday, September 16th, 2014

Julie FitzpatrickThis judgement related primarily to the costs of the proceedings in the Court of Protection and, in particular, whether the Second Respondent should be made to pay her own costs or whether they should be assessed and paid from the estate.

The Applicants (E’s children) applied o the court for, and were subsequently granted, an order to inter alia suspend the powers of the Second Respondent to act as attorney under the Lasting Power of Attorney executed by E on the grounds that she had physically, emotionally and financially abused E. The Applicants invited the court to make no order as to costs in respect of the Second Respondent’s costs.

Senior Judge Lush ruled that it would be appropriate to apply CoPR 2007 rule 156 as the starting point to the costs of the proceedings, namely that, where the proceedings concern property and affairs the general rule is that the costs shall be paid by E or charged to her estate. The court may depart from this rule if the circumstances so justify. Rule 159 which describes the circumstances in which the court may depart from the general rule, refers to the conduct of the parties before and during the proceedings. As regards the Second Respondent’s conduct before the proceedings, Senior Judge Lush found that the allegations that the Second Respondent had physically, emotionally and financially abused E had not been put to proof, and that her conduct during the proceedings had been satisfactory and she had done what was required of her. He therefore ordered that the costs of all parties be assessed on the standard basis and paid from E’s estate.

 

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