The Court of Appeal has set aside an order requiring the Clinical Director of the Central Mental Hospital (CMH) to pay 50% of M.C.’s High Court costs, after her case became moot following her absolute discharge from the hospital.
In a judgment delivered on 7 March 2019, Mr Justice Michael Peart said the High Court costs award was not in accordance with established principles. The Court of Appeal made no order against M.C. for her High Court costs, after the respondent indicated it would not seek one. The court said the parties should be heard separately on the costs of the appeal; it did not decide that issue in this judgment.
The High Court had awarded M.C. half her costs despite finding the proceedings moot. The trial judge considered that the case raised important public law issues and exercised discretion to depart from the usual rule that costs follow the event.
The respondent challenged that award, arguing the case was private interest litigation, not a test case or public interest challenge. It said the proceedings had become moot before a full hearing, no other cases stood to benefit from clarification, and the issues had not been determined in M.C.’s favour.
M.C. argued that a disagreement between two public bodies over the meaning of section 13A of the Mental Health Act 2006 had personally affected her, leaving her to seek clarification. She also relied on the Court of Appeal’s earlier recognition of a potential claim concerning constitutional rights, though the earlier judgment said any damages would be nominal at best if that claim succeeded.
Justice Peart said a trial judge has wide discretion on costs, especially after hearing the case. But he concluded that this case was not a test case: the court could not say anyone else would benefit from clarification. Nor did the statutory interpretation question alone make it one of general public importance. M.C. had brought the case to address a difficulty affecting her personally, he said, rather than acting in the public interest.
The court’s judgment addressed the respondent’s cross-appeal against the High Court costs order. The separate question of costs for the unsuccessful appeal remained to be heard.