Whilst the normal rule in welfare cases in the Court of Protection is that there should be no order as to costs, this does not apply to appeals from the Court of Protection which are governed by CPR Part 44: Cheshire West v P [2011] EWCA Civ 1333.
Her Honour Judge Evans-Gordon considered the application of the Chorley principle in the context of this Court of Protection case where, for the material part, a solicitor (“SAP”) had been a party to the proceedings and had an interest in the outcome in that she was the nominated attorney under a disputed LPA. During this time she had acted as a Litigant in Person within the firm by whom she was employed. SAP unsuccessfully sought to recover her costs on the same basis as if she had instructed her solicitor firm to act for her.
Following proceedings for an account by the claimants as executors of what they had done with the deceased’s estate HJJ Matthews ordered that defendant do pay 80% of the claimant’s costs. He was then asked to decide whether the claimants should be entitled to an indemnity for the remaining 20% balance from the estate. Concluding that whilst they had lost on some issues the claimants had not behaved improperly or unreasonably and in accordance with section 31 of the Trustee Act 2000 (applied to executors by section 35) and CPR Part 46 Practice Direction, paragraph 1 they were entitled to such an indemnity.