This recent High Court ruling has raised significant concerns amongst a number of key stakeholders within the industry, which could ultimately have a detrimental impact on the vulnerable people we are entrusted with serving.

It also raises questions about the fitness for purpose of a key plank of the costs provisions contained in the Court of Protection Rules. 

Case history

Application

Initial referral received in August 2022 from City of York Council (CYC) who had, had extensive involvement with NA over the preceding 10 years or so. A wide range and considerable amount of support had been provided to him by CYC over the years.

CYC did not believe it appropriate for themselves to make the application due to the complexities of NA’s affairs, along with the fact that he owed approximately £40,000 in Council Tax arrears, which presented a potential conflict of interest.

Of further and more pressing concern was the potential for NA to lose all three of his properties due to mortgage arrears that had built up an all three properties.

As a side note NA also owed approximately £200,000 to family, friends and ex-girlfriends who had lent him funds over the years. His parents taking out equity release on their own property at one stage to assist him with his property portfolio.

NA was living in a severe state of neglect with photos exhibited as part of the application. These photos indicated hundreds and hundreds of wine bottles scattered around the floor of the property, no running water, no actual bed and dog faeces situated in numerous rooms around the property.

Thus it was evident that CYC had a safeguarding role here to discharge.

The application was submitted in October 2022, with a COP3 completed by a Social Worker who had been working with NA for the past three years. This COP3 provided a detailed chronology of events leading up to the referral to ourselves. I must say that it was one of the most impressive and comprehensive COP3’s I had seen in my 25 years within the industry. The assessment concluded that NA lacked capacity, and the court issued the application accordingly.

In March 2023, NA entered alcohol rehabilitation treatment in looking to address his issues with alcohol/substances. Supported by the charity involved he began addressing the various issues relating to his property and finances.

Thus at this point in time where was a material change in NA’s circumstances.

First instance judge

The first order in June 2023 by DJ Boorman mentions the possible need to consider a S49 report when it came to NA’s capacity to firstly conduct proceedings, and secondly to manage his property & financial affairs. This is an important date as we will see come May 2024.

Over the next 11 months there were four Dispute Resolution Hearings (DRH’s), with the judge’s role appearing to be one of an inquisitorial nature when it came to seeking answers’ around NA’s finances and what improvements/progress (if any) had been made? This of course involved significant work on my behalf attending hearings, submitting witness statements, providing clarification around queries raised by the judge eg. Capital Gains Tax (CGT) which had not been paid by NA on the sale of his first property in May 2023 – was this payable? NA believed it was not stating that he had received advice on this topic. This was despite NA receiving detailed financial modelling around his two rental properties from his allocated social worker, that covered in great detail any probable CGT liabilities. This liability has still not been paid as far as I’m aware with daily penalties accruing. Again a very significant debt to address here.

During proceedings CYC also issued a bankruptcy petition against NA for unpaid council tax arrears. This involved further work for all, and obviously was of great concern for ourselves with regards to our own costs so far.

The conduct of NA during proceedings also needs to be highlighted:

• Regularly late in complying with orders (sometimes a month or longer) resulting in three hearings having to be cancelled and rescheduled. Yes more work.
• Regularly submitting documents to the court at the last minute without sharing with myself
• Providing conflicting financial information with previous information provided which the judge highlighted. Conduct re honesty called in to question here I believe.
• Physically storming out of a hearing (and not returning) after being asked by the judge why he transferred £25,000 to his mother for ‘safe keeping’? This was after NA had previously told the court that he had only £500 in his three accounts.

At all times during this first stage of proceedings I assisted and served the court with what I was asked of. I was not only assisting the court, but also assisting NA.

I regularly raised the issue of our costs, and following the issue of bankruptcy proceedings by CYC against NA, I submitted a COP9 asking for an interim order with regards to our costs so far.

In May 2024, the court ordered a S49 report to address NA’s capacity to make decisions about his property and affairs. The report concluded: “In my opinion, at the time of my assessment, on the balance of probabilities, NA had the capacity to manage his property and affairs. I note that such a conclusion may be at odds with earlier assessments. However, in my opinion it is likely that there have been changes in NA’s levels of functioning as a result of his decision to stop drinking and the support he has received in the last year”.

I swiftly withdrew my application on the back of this evidence.

The fact that it took a year from when first mentioning a S49 report to actually ordering and receiving this report, does need to be questioned in my view.

Both the second and third instance judges commented that the case management of the matter at the first instance could have been better, with particular emphasis on the prolonged nature of the DRH’s. Within EG & Anor v AP & Ors [2023] EWCOP 15 (14 April 2023) Senior Judge Hilder stated that there should only be one DRH. Yet in this instance we had four.

Second instance judge

Two further hearings were held with DJ MacCuish, with the final hearing occurring in December 2024, where no order as to the costs of the substantive proceedings was made.

This was quite a short hearing (and even shorter judgement – half a page) where the judge appeared to be applying Civil Procedure Rules, with no mention whatsoever to the Court of Protection Rules. Slightly alarming considering we were sitting in the Court of Protection!

Ms Justice Harris stated on appeal the following: “Having considered the judgment of District Judge MacCuish, and whilst reference is made in general terms to some of the correct principles to be applied and the factors to be considered, it is clear that District Judge MacCuish did not anchor the exercise of his discretion in the framework provided by Part 19 of the Court of Protection Rules. There is no reference to the starting point provided for by Rule 19.2, and he did not thereafter structure his decision-making by considering, in clear terms, whether there were grounds to depart from the position set out in Rule 19.2 by reference to the various factors set out in Rule 19.5. I am satisfied that the failure to exercise his discretion in accordance with the structure provided for by the rules constitutes an error of law and renders his decision wrong. The appeal is allowed on that ground”.

So firstly there has been a poorly managed case management side of the matter, and secondly there has been an erroneous error of law – what option did I realistically have but too not appeal the decision handed down by DJ MacCuish?

Third instance judge

It was clear during the hearing with Ms Justice Harris that she did not agree with the Court of Protection Rules 2017, Rule 19.2. She stated this herself, whilst both sets of Counsel had to repeatedly state to her that ‘these are the rules’, and ‘no I do not make the rules’.

She also stated that she thought the ‘system is putting the risk on P’, whilst at paragraph 28 of the ruling she states: “That may seem a fairer solution than imposing the costs burden on vulnerable adults such as NA”.

As to the ruling itself I would like to highlight the following points:

• Numerous pieces of case law were provided – the main one been Re Cathcart (1892), but ultimately appeared to not have much sway with the judge?
• She did state herself: “This approach to costs in matters of property and financial affairs, even if the application is ultimately unsuccessful, ensures people are not deterred from making applications in good faith by being penalised in costs”. This is a little bewildering as this is exactly what has happened?
• I’m not sure I understand the relevance/mention when it comes to costs in Health & Welfare matters before the court, where there is usually no order as to costs?
• At paragraph 26 the judge states: “The proposed Deputy is under no obligation to make the application”. Is that not our job though in looking to protect the vulnerable people we serve?
• Even if local authorities were to bring such complex applications before the court, this would still not negate the issue of costs as the local authority (like the professional deputy) would still seek it’s costs.
• Having spoken to a few local authorities over the past couple of weeks it is clear that no local authority is going to indemnify any professional deputy for making such applications.
• It is stated that I acted in good faith in making the application, and that it was entirely reasonable for the application to be made.
• Yes the application was motivated by NA’s best interests, but it is also the cornerstone of my business – acting as a deputy for vulnerable adults who may not have anyone else to take on that role. The hint is in the name ‘Professional Deputies’. I am carrying out a profession just like the judge is. Thus this argument carries little weight with myself.
• As to comments about my ‘adversarial tone’ and ‘hostile nature’ the following comments were made in one Witness Statement: “The Respondent like all taxpayers needs to pay his required taxes in full and on time. Why should he be any different than the rest of the population”?, and “The Respondent is the registered owner of both rental properties, and thus ‘the buck stops here with him’, instead of trying to pass blame to both his father and brother. Unfortunately over the past 18 months this is something that I have seen far too often from the Respondent: laying blame at other people’s feet instead of accepting responsibility himself”. I certainly do not portray this as hostile or adversarial. These comments need to be put into context around the numerous hearings where NA verbally blamed everyone else for the situation he found himself in. It is a fact that he has considerable Council Tax arrears to pay, along with a considerable Capital Gains Tax liability to pay on the sale of his first property. As to the other two Witness Statements I honestly cannot find anything which could be construed as either hostile or adversarial? It should also be noted that during hearings at the first instance I regularly commented how good it was to see the progress that NA was making with his abstinence, and looking to get his financial affairs back on track.
• The judge states at paragraph 33: “That is despite it being the applicant’s position that NA lacked capacity to conduct his property and financial affairs”. Well he did at the material time when the application was made as otherwise why would the application have been approved by the court to proceed forward?
• When the judge states that ‘NA is not at fault in any way’ when it came to the need for the application before the court, I would suggest otherwise that this is not the case at all. He would certainly have not wanted this application been bought before the court, but sadly his circumstances dictated otherwise.
• Lastly when the judge states “NA, a vulnerable adult the Court of Protection is designed to protect, has gained little to no benefit or advantage from this application being brought”, I would offer a different perspective in that these proceedings have actually provided him with the opportunity to get his affairs in order, or to at least start the process of getting a start on improving these.

Commentary

Having spent the past 39 months on this complex matter amounting to over a 100 hours of work, my costs amounting to circa £30,000 and disbursements amounting to circa £17,000, I’ve found this judgement (understandably so) to be very alarming, and a particularly poor one.

For me this decision demonstrates a real disconnect between deputies and professionals on the ground, and judges who have never practiced in the area.

At all times I’ve felt I’ve been at the behest of the court.

A number of individuals, firms and trade bodies have contacted myself over the past week expressing their concerns with this judgement, and the possible effect it could have on the vulnerable people we are asked to serve.

A real life example may help shed some light on the possible ramifications of this ruling for the vulnerable parties we serve. You as a deputy have received a new referral where P has a prolonged history of alcohol/substance misuse. Thus his capacity may well be nuanced over a period of time? At the time of serving the COP14PADep on P he refutes his alleged lack of capacity, and objects to the application. Now on the back of this ruling what is any proposed deputy going to do? Some serious thought will need to be given as to whether or not they proceed with the application, and run the very real risk of an adverse costs order? I dare say some of the smaller firms may well not be prepared to take this risk? If so who then picks up the application? Panel Deputy or already over-stretched local authorities?

I would like to leave this last comment (posted on a public forum) for people to consider which I believe sums up my predicament perfectly: “The phrase “losing party” shows a profound misunderstanding of the function of the court of protection and its collaborative, cooperative, practical and constructive approach. It demonstrates a mindset alien to the CoP; Andrew Riddle was absolutely not a “losing party” he was a professional acting and assisting in good faith. He made his application at an appropriate time and in an appropriate way. He withdrew his application, when the facts changed, in a timely and appropriate way. He should not be punished for it, and as others point out, people in similar circumstances must not be discouraged from acting to protect people. If the courts cannot see that their ruling is contrary to the principles of the CoP and contrary to public policy a legislative solution may be needed”.

Lastly as a side note – there may be a silver lining to this very grey cloud in that we have received over the past week five new referrals: one especially interesting involving a HNW client with assets domiciled here and overseas. What do they say about any PR, or perhaps people are just feeling sorry for me?

For the full judgement please see the following link: Riddle v NA [2025] EWCOP 39 (T3) (06 November 2025)