Need for Greater Case Management in the Court of Protection

Posted on Friday, January 30th, 2015

Julie FitzpatrickCosts budgeting and greater case management may be coming soon to the Court of Protection. High Court Judge Mr Justice Peter Jackson has issued a joint ruling illustrating the problem of delay and expense in proceedings in the Court of Protection.

A & B (Court of Protection : Delay and Costs) [2014] EWCOP 48 (25 November 2014) concerned two separate cases involving young men who lacked the capacity to make decisions for themselves. In Case A, the young man had capital from a damages award, and his legal costs were paid out of his capital. In Case B, the young man had no capital and his legal costs were met by the legal aid fund. In both cases the Official Solicitor acted as litigation friend and instructed local solicitors, with the other parties being local authorities, health providers and family members.

In Case A, the proceedings lasted for 18 months and the estimated legal costs were £140,000. Approximately £60,000 fell on the local authority, £11,000 on a legally aided family member and £69,000 on the young man himself, paid out of his damages.

In Case B, the proceedings lasted five years and the estimated legal costs were £530,000. Approximately £169,000 fell on the local authority, £110,000 on a family member and £250,000 on the young man himself, paid for out of legal aid.

Mr Justice Peter Jackson referred to the “extravagance” of the proceedings and said they had not “remotely achieved” the objective in the Court of Protection Rules 2007. Rule 5 states that the court has a duty to actively manage cases yet the Judge found that neither case had complied with the requirements of Rule 5. “There were too many hearings before too many Judges, too much documentation, and too many lengthy adjournments with excessive time estimates for hearings.”

The consequence of delay in each case was “protracted stress” for the young men and a “drain on the time and energy” of social workers and medical professionals. The Judge said “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.” He stated that the main responsibility for the delay and it’s solution lay with the Court of Protection, and referred to the introduction of greater case management measure in Children Act Proceedings:

“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.”

Mr Justice Peter Jackson suggested that the same disciplines be introduced in the Court of Protection, and sent a copy of his ruling to Sir James Munby, President of the Court of Protection, for his consideration.

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