Solomon's judgment

Part of the role of the Official Solicitor (OS) is to act for those unable or unwilling to act for themselves in circumstances when a declaration is sought by an NHS trust as to whether treatment is in a patient's best interests.

The court needs to balance the competing claims of the NHS trust and the OS in relation to costs and the decision is a matter of discretion for the court in all the circumstances of the case. Trusts know that the OS will seek costs or a contribution to their costs and in the past it has been the usual practice of the courts to award the OS a proportion of his costs, usually half (although in Tameside and Glossop Acute Services Trust v CH [1996] 1 FLR 762, the court awarded only one-fifth of the OS costs). It has previously been described as a 'judgment of Solomon" to 'split the difference" in relation to the costs of the OS and ask the party who has sought the assistance of the OS to pay half the OS costs. The costs of such proceedings are significant. In NHS Trust v Ms D [2005] EWHC 2439, the costs of the OS and the NHS trust were between £30,000 and £35,000 each.

In terms of budget, the OS is funded centrally (albeit that the budget is calculated on the basis that in the majority of cases the OS costs will be contributed to), whereas an NHS trust does not receive public funding specifically for such matters. Generally the nature of best interests cases mean that it is unavoidable litigation in which both an NHS trust and the OS have to be engaged.

Two recent and conflicting cases have looked at whether an NHS trust should indeed pay a proportion of the OS costs. The second decision has left open for review whether an NHS trust should in fact be agreeing to make a contribution to the OS costs.

Contributing to OS costs

In X NHS Trust v J [2005] EWHC 1273, an NHS trust sought directions in relation to the treatment of an elderly patient who lacked capacity. The OS acted as the patient's litigation friend and the court made orders authorising exploratory procedures and specific medical treatment in the patient's best interests.

At the end of the proceedings, the OS applied for an order that the NHS trust should pay one half of the OS costs. Munby J held that the NHS trust should pay one-half of the OS costs from the date of issue of proceedings on the basis that :

• The court had an unfettered discretion to determine in all the circumstances of the case the OS costs and who should pay them;
• It was normal practice for the claimant. NHS trust to pay the OS costs at first instance and was in the public interest that the OS should act. Most NHS trusts would only be involved in a handful of cases and if the OS did not recover some costs from NHS trusts the aggregate burden on the OS would be very large.

In NHS Trust v Ms D [2005] EWHC 2439, an application was made guidance in relation to the medical treatment of an incapacitated patient. The patient was represented by the OS who again sought half his costs.

The court ordered the NHS trust to pay £5,000 towards the costs of the OS on the basis that there were special factors in this particular case that warranted a contribution. However Coleridge J broke with previously generally accepted opinion and held that, in general, public policy or public interest did not justify an order where one public body carrying out its functions appropriately should pay the cost of the other public body. There had been 'no real point of principle or substance upon which the orders have been made in the past'.

Counsel for the OS in these cases have argued that the presence of the OS ensures that the court explores every aspect of a case and provides invaluable and essential assistance to all parties, and that it has been the previous practice and approach of the court in cases such as these that an NHS trust should make a contribution (para 45, X NHS Trust v J ). Further, the OS has a limited budget and this budget presupposes that, in the majority of cases, it will recover a contribution to its costs. If a contribution is not made, it may have to prioritise cases and not be able to act in matters where it serves public interest.

Counsel for NHS trusts have argued that that there is no binding precedent, principle or statutory basis for this practice; it has simply grown up over time. An NHS trust with clinical or caring responsibility should always be a party to the proceedings and often has no alternative other than to seek declaratory relief (Re S (Hospital Patient: Court's Jurisdiction) [1996] Fam 1). It is important that NHS trusts should not be discouraged from seeking the court's guidance by additional financial constraints. Of course a trust must act entirely properly throughout the matter, but in general the proceedings are non-adversarial and both the OS and the NHS trust seek to achieve a common goal. Additionally the OS does not stand in a privileged position in relation to costs (para 12, NHS Trust v J). In terms of budget the OS has an (albeit limited) budget for cases such as these whereas NHS trusts receive no budgetary funding for such litigation. On this basis there is no justification for asking them to pay a portion of the OS costs as well.

Uncertainty

NHS Trust v Ms D indicates that there is still some uncertainty as to whether NHS trusts in cases such as these should make a contribution to the OS costs.

It is surely reasonable for a trust to ask why they should contribute to the costs of the OS from a very limited budget that could perhaps be more properly directed towards the medical care of patients. Munby J held in X v NHS Trust that the answer to this is a pragmatic view of judicial policy in that, if the OS was not awarded a contribution, the aggregate costs burden would probably exceed his current budget with the implication that the OS would not be able to act in certain matters where it is clearly in the public interest that he do so. Coleridge J, however, did not consider that this of itself was a sufficient reason to give costs to the OS.

The commentary on NHS Trust v Ms D [2005] EWHC 2439, 196-197 suggested an alternative solution '“ that there should be a separate and defined pool of money to pay for the cost of these applications, presumably provided by central government.

It is not clear whether in future the courts will follow the 'usual order' made by Munby J or adopt the reasoning of Coleridge J. In Trust A v Ms RV (2006), a recent, as yet unreported case, Holman J discussed this issue in the light of the two cases above. He was of the view that the approach that the NHS trust should pay half of the costs of the OS is an arbitrary one. He clearly recognised that the main issue is the difficulty dealing with budgets of public bodies. However, he also indicated that if the OS instructs counsel, those fees should not be automatically given, as, although they are treated as disbursements in the same way as an expert's fees, counsel is considered to be acting in an extension of the role of the OS to investigate and advocate on behalf of those needing these services.

Trusts seeking to persuade a court to follow Coleridge J's reasoning in order to obtain an order for no costs they should endeavour to show:

• a demonstrably timely application for relief and no conduct points during the case. In X NHS Trust v J the court said obiter that medical treatment cases should not be left until the last minute to bring to the court. Trusts should consider seeking early advice from their legal advisers if a matter might potentially be one that will involve the OS and possible determination by the court;
• details of the trust's financial deficit (if applicable); and
• details of the trust's legal budget so that the relative impact of an award of the OS's costs can be argued.

In practice

Clearly there is still some uncertainty in relation to costs, and representatives of NHS trusts should not routinely agree to make a contribution to costs at the start of the proceedings. It should be borne in mind that the OS cannot be compelled to act ( para 13, X NHS Trust v J). However, in practice, it does not refuse to do so. Trusts should be advised about the potential of half-costs awards at the conclusion of the case to the OS and particularly that the costs of any expert instructed by the OS will be considered to be an essential part of the costs.

It may well be that the matter will in the future be referred to the Court of Appeal. However in the past in Northampton Health Authority v The Official Solicitor and the Governors of St Andrew's Hospital [1994] 1 FLR 162 and B v Croydon Health Authority [1995] Fam 133, the Court of Appeal refused to overturn the decision of lower courts awarding half costs orders in favour of the OS. This is clearly a live issue that will be reviewed by the courts on a case-by-case basis.