In the Matter of A.B [A Respondent] (Approved)

Factual and Procedural Background

On 19 March 2021, a petition was presented on behalf of Company A seeking to admit the Respondent to wardship. At that time, the Respondent was in his mid-60s and residing in the Department of Psychiatry at a hospital in The State, with a long history of mental health issues including schizophrenia, Asperger's syndrome, delayed processing skills, and bipolar affective disorder. The petition was supported by affidavits from two consultant psychiatrists and a social work report. The Respondent had been living in unsuitable conditions and was unable to manage his home or financial affairs, including a substantial inheritance.

The petition included an undertaking by Company A to pay costs if the petition was dismissed or not proceeded with. The court ordered an inquiry into the Respondent's mental capacity, initially to be conducted before a jury. The Respondent lodged an objection demanding a jury inquiry but faced difficulties obtaining supporting medical evidence. Eventually, a report from an independent expert, Professor Casey, concluded that the Respondent no longer met the criteria for wardship due to significant improvement in his condition, a view later supported by the Respondent’s treating psychiatrist.

As a result, Company A decided not to proceed with the wardship application or the inquiry. The issue of costs arose because the Respondent sought an order for costs against Company A, which disputed liability for costs. The matter was heard in late 2023, and judgment was reserved.

Legal Issues Presented

1. Whether the Respondent is entitled to an order for costs against Company A following Company A’s decision not to proceed with the wardship petition and inquiry.
2. The applicability of the longstanding practice in wardship proceedings concerning costs allocation.
3. The interpretation and application of sections 168 and 169 of the Legal Services Regulation Act 2015 and relevant court rules in the context of wardship proceedings.
4. The effect of Company A’s undertaking in the petition on the costs liability.
5. Whether Company A’s discontinuance or abandonment of the proceedings triggers costs liability under section 169(4) of the 2015 Act and Order 26, Rule 1 of the Rules of the Superior Courts.
6. The relevance of mootness and whether the improvement in the Respondent’s condition affects costs liability.

Arguments of the Parties

Respondent's Arguments

• The Respondent contended he was wholly successful in resisting the wardship petition and thus entitled to costs against Company A under sections 168 and 169 of the 2015 Act.
• Relied on section 169(4) of the 2015 Act and Order 26, Rule 1 RSC, arguing that Company A discontinued the proceedings and should pay costs incurred up to that point.
• Distinguished the case from precedent where costs were not awarded to respondents, emphasizing that he maintained his objection and that Company A withdrew after receiving Professor Casey’s report.
• Relied on constitutional rights under Articles 40.1 and 40.3.2, arguing that refusal to award costs would breach equality and cause injustice.
• Argued that Company A ought to have obtained updated medical evidence earlier, thus unnecessarily prolonging proceedings and incurring costs.
• Relied on the undertaking in the petition requiring Company A to pay costs if the petition was dismissed or not proceeded with.
• Criticized prior case law as wrongly decided or distinguishable.

Company A's Arguments

• Company A contended no order as to costs should be made against it, relying on longstanding wardship practice where costs are borne by the Respondent or his estate if the petition was brought bona fide and on reasonable grounds.
• Accepted that sections 168 and 169 of the 2015 Act and Order 99 RSC are relevant but emphasized the discretion courts have, especially in wardship cases which are not typical lis inter partes.
• Argued that Company A did not discontinue or abandon the proceedings in the sense contemplated by section 169(4) or Order 26, Rule 1, but rather ceased proceedings due to improved medical evidence.
• Maintained that the undertaking in the petition was intended to cover costs of medical visitors or incidents to the inquiry, not the Respondent’s legal costs, and that it should apply only where the petition was presented improperly.
• Contended that the improvement in the Respondent’s condition was outside Company A’s control and that the proceedings did not become moot by unilateral act.
• Argued that awarding costs against Company A would deter appropriate wardship applications, which are brought solely for the benefit and protection of vulnerable persons.
• Supported adherence to the established practice and relevant precedents, including Catherine Keogh and T.H.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully reviewed the statutory framework, the longstanding wardship practice, and the submissions of the parties. It acknowledged that wardship proceedings differ from typical adversarial civil litigation and that the purpose of such proceedings is protective, not contentious. The court emphasized the established practice, as articulated in Catherine Keogh and M.J., that where a petition is properly presented on reasonable grounds and for the benefit of the Respondent, costs are generally borne by the Respondent’s estate, even if the petition is unsuccessful.

The court found that the conditions for applying this practice were satisfied: there were reasonable grounds for the petition based on strong medical evidence, and the petition was brought bona fide and solely for the Respondent’s benefit. The court rejected the Respondent’s arguments that constitutional rights required a different approach, finding that the practice properly accounts for differences in capacity and is just.

Regarding the 2015 Act and Orders 99 and 26, the court agreed with prior authority that these provisions allow wide discretion in wardship cases and do not displace the established wardship cost practice. The court found it difficult to characterize the Respondent as "entirely successful" because the inquiry did not proceed and the petition was not dismissed or withdrawn formally. It also held that Company A did not "discontinue" or "abandon" the proceedings in the statutory sense but ceased them for legitimate reasons based on updated evidence.

The court analyzed mootness principles and concluded that the case did not become moot by unilateral act of Company A but rather due to a change in the Respondent’s condition outside the parties’ control. Consequently, no costs order was appropriate on that basis.

On the undertaking in the petition, the court accepted the interpretation that it applies to costs of medical visitation or incidents to the inquiry in cases of improper petitions, not to the Respondent’s legal costs generally. The court found it would be unfair and unjust to hold Company A to the undertaking given the circumstances.

Finally, the court emphasized the importance of judicial comity and legal certainty in following the decision in Catherine Keogh, noting no substantial reasons existed to depart from it.

Holding and Implications

The court’s final decision is that the Respondent is not entitled to an order for costs against Company A in respect of the wardship proceedings. The fair and just order is that each party bears its own costs.

The court declined to order Company A to pay the Respondent’s costs on any of the grounds advanced, including statutory provisions, mootness, or the undertaking in the petition. The longstanding wardship practice and principles of fairness and bona fide conduct by Company A were determinative.

This decision means the Respondent must bear his own costs, potentially through his estate, consistent with wardship practice. No new precedent was established; rather, the court affirmed and applied existing principles governing costs in wardship proceedings, emphasizing the protective and non-adversarial nature of such cases and the court’s broad discretion in costs matters.