EG v RS  EWHC 3073 (COP)
EG had to pay the costs of her application for permission to apply to be appointed RS's health and welfare deputy: she ought to have known that her application was doomed to fail because her role as RS's brother-in-law's solicitor, in an acrimonious family dispute, conflicted with the duty to act in RS's best interests.
The following is an extract from Judiciary of England and Wales, 'Court of Protection Report 2010' (July 2011).
17. EG v RS, JS and BEN PCT (His Honour Judge Cardinal, Birmingham Civil Justice Centre, 3 August 2010). RS was born in 1963 and has a brain injury as a result of a road traffic accident in 1994. There is an ongoing dispute between his sister, JS, and his deputy for property and affairs and primary carer, CH, who happens to be JS’s former husband. A female solicitor, EG, has been acting for CH in this dispute. In January 2009 EG applied to the court to be appointed as RS’s personal welfare deputy. JS opposed the application. At a hearing in Birmingham on 25 August 2009 District Judge Owen refused EG’s application for permission, and ordered her to pay the costs of JS, the Official Solicitor and the PCT because he considered that her application was ill-judged and misconceived. EG appealed. HH Judge Cardinal dismissed the appeal, apart from allowing by consent an order that the costs be paid by EG’s firm, and not by her personally.
At paragraph 38(iv) he said:
- “I endorse the view that professionals should not be discouraged from making applications; but there must be a limit to such applications where there is clear opposition and acrimony given the role of the would-be Deputy hitherto. It seems to me that such an applicant ought to ask him or herself:
- Am I in any way compromised by my intervention to date?
- Is there any evidence of my taking sides too strongly?
- Can I be sure all parties will indeed regard me as a neutral arbitrator?
- Am I really suitable given the history of conflict with my client and my support of him?
- Would my appointment mean more conflict?
- Had EG asked herself those questions then it is clear she would never have applied.”
Before: HHJ Cardinal
Mr Mallalieu (instructed by DWF LLP) for the Appellant
Mr Joseph O’Brien (instructed by Irwin Mitchell) for the Respondent RS
There was no appearance by JS save by letter from her solicitors Anthony Collins
BEN PCT did not oppose the appeal and did not attend
EG v RS, JS and BEN PCT (COP case number 10237109)