It’s good to talk: court recommends case management pilot
CGD v Barts NHS Health Trust and another [19.01.17]
The court highlighted how a significant incurrence of costs can be avoided through open discussion and negotiation, as prescribed by the Court of Protection’s case management pilot.
CGD was a 52-year-old man who suffered a subarachnoid haemorrhage and was admitted to the defendant Trust with a reduced level of consciousness. He was unable to speak and was totally dependent on others to ensure that his care needs were identified and met. His sister - appointed his deputy for property, affairs and personal welfare - was his litigation friend in this matter.
The Trust successfully argued that it was in CGD’s best interests to stay at the Trust. It was disputed that care fell below an acceptable standard. As the matter was issued in the Court of Protection, the standard position was that each party was to bear its own costs. Nevertheless, the solicitors acting on behalf of CGD sought their costs.
The family considered that the Trust had been unreasonable and queried its conduct. In particular, they alleged:
- There had not been an appropriate deprivation of liberty safeguard authorisation and a formal application to the Court of Protection within a reasonable time limit.
- A failure to provide a proper response to an ongoing complaint within 40 working days.
- Inappropriate litigation behaviour, including seeking a final order at an initial hearing and opposing an expert at a hearing.
The Court of Protection judge confirmed that there was no issue regarding the complaint. The complaint was not in relation to the welfare of CGD and was a matter to be taken up with the Ombudsman. The judge also found that allowing only one week for an NHS trust to provide or issue an application to the Court of Protection was unreasonable. This was not part of any overriding objective and was disproportionate. The opposition of an expert at a hearing was part and parcel of litigation and could not be considered unreasonable.
The standard position regarding costs was held to be correct.
The judge advocated the case management pilot that was introduced in the Court of Protection in September 2016 (which was after this matter was issued). The pilot places the parties under an obligation to engage with each other to try and resolve matters before proceedings are issued and, if that is not successful, to work together to try and resolve matters thereafter. The judge highlighted this case as an excellent example of the mischief that the case management pilot seeks to resolve.
If the parties had been obliged to sit together, discuss the issues and chart a way forward, (alone or through mediation) he suspected that progress could have been made, litigation avoided and the family’s confidence restored to some degree.
The reference to using the case management pilot represents excellent progress. This case highlights the need for parties to ‘get round a table’ and discuss matters openly in an attempt to negotiate a way forward. This would have avoided the incurrence of significant costs by both parties and also the last costs hearing, which was unnecessary.
We hope to use the Court of Protection case management pilot in the near future and welcome any family or family’s solicitors to engage in this process.