The Court of Protection has left open the question of whether news organisations are automatically accountable for costs when losing applications to challenge Reporting Restrictions Orders. The issue arose after the Applicant made an unsuccessful application for costs in the case of V v Associated Newspapers & others  EWCOP 21. The Applicant had applied to extend a Reporting Restrictions Order preventing the press from reporting the identity of the Applicant’s mother and her family after the death of her mother, who had been the subject of a Court of Protection case where it had been decided that she had capacity to refuse life-saving treatment.
The Court of Protection proceedings
In November 2015 an NHS Trust applied to the Court of Protection (“COP”) for a declaration under the Mental Capacity Act 2005 that one of its patient lacked capacity to make decisions about her medical treatment Kings College Hospital NHS Foundation Trust v C  EWCOP 80.
The patient C had been treated for breast cancer in 2014, the same year in which her fourth marriage had broken down and in which she had lost her business. She attempted suicide by washing down 60 paracetamol tablets with a bottle of champagne on a South Coast beach, suffering kidney failure as a result. The medical prognosis was highly positive with the likelihood of full recovery if C underwent dialysis treatment. C refused treatment as she did not wish to go on living without her “sparkle” i.e. her expensive, material and looks-orientated social life.
COP hearings are usually held in private but since the application concerned the possible loss of serious medical treatment it was heard in open court. A Reporting Restrictions Order (“RRO”) was granted at the directions hearing preventing the media from identifying C and her family and from contacting C’s family about C during C’s lifetime. C’s daughter, V, instructed solicitors and was added as a party to the case.
On 13 November 2015 Mr Justice MacDonald, sitting as a judge in the COP, considered the evidence put forward in the case. He heard oral evidence from one of C’s adult daughters, G, about C’s lifestyle and also considered three psychiatric reports. Two of the psychiatric reports concluded that C lacked capacity by reason of being unable to use and weigh the information required as part of the decision-making process about whether to undergo dialysis, that inability being due to her belief system or a personality disorder. A further psychiatric report concluded that, although the patient suffered from a narcissistic personality disorder, she had capacity. As a result, MacDonald J refused the application stating that a capacitous individual may refuse treatment even in circumstances where that refusal will lead to his or her death. That C considered the prospect of growing old, with fewer material possessions and the fear that she has lost, and will not regain, “her sparkle”, outweighed a prognosis that signals continued life did not mean that she lacked capacity to decide whether or not to accept treatment by way of dialysis.
Application for the Reporting Restrictions Order to be extended
C died two weeks later on 28 November causing the RRO to lapse. The Judgment was handed down on 30 November and published shortly afterwards. This sparked media interest with V's solicitors receiving 24 press enquiries on 2 December 2015. Around 40 of the people who contacted G around this time informed her that they had been approached by journalists. The father of C’s teenage daughter, A, was also contacted. A number of newspapers published photographs of C, with her face obscured, but probably recognisable to people who knew her. Consequently, an application was made by V on 2 December 2015 that the RRO be extended. The application was heard on the same day and an interim RRO was granted despite opposition from the media.
On 9 December 2015 the application was heard before Mr Justice Charles who extended the interim RRO and allowed the Media Respondents to submit submissions and evidence on why it would be in the public interest to publicise C’s identity. The Applicants subsequently filed evidence in January, dropping their opposition to the RRO being extended and instead submitting it should last until A’s 18th birthday.
In arriving at his judgment Charles J paid careful attention to the probability of serious and long-term harm and distress that A (C’s youngest daughter who was a minor) would suffer if the family was identified, and the balance between the family’s Article 8 right to privacy and the Article 10 interests of the press and the public. He characterised the media’s interest in the case as “reporting the prurient interest of the public in the personal details of the lives of others rather than the public interest in important issues”. He confirmed that RROs can be extended in serious medical treatment cases after the death of the subject of those proceedings. The Article 8 rights of C’s family were engaged as the COP had itself invaded the privacy of the family and made a finding that had a profound impact on C’s family that was based on evidence relating to the private and family lives of C and her family. Upon balancing the Article 8 rights of C’s children against the benefits of naming the individuals involved, Charles J judged that the former outweighed the latter.
The costs application
V subsequently made an application for part of her legal costs to be paid on the indemnity basis by the Respondents. No order was sought for the period from 5pm on 8 December because of a reciprocal agreement reached with the Respondents not to seek costs of the hearing on 9 December 2015. The Applicant had previously been receiving Legal Aid but this was withdrawn by the Legal Aid Agency on the evening of 8 December 2015.
The Applicant relied on her success in the application and on the conduct of the media which was said by Charles J to have added to the distress of C’s family. The Applicant also relied on the fact that the Respondents had abandoned several of the arguments they had advanced at the 2 and 9 December hearings and also their denial of the Applicant’s and her family’s Article 8 rights at those hearings.
The conduct of the Media
In his judgment Charles J had criticised the conduct of several of the media organisations reporting on the sparkle case. He said that much of the publicity was precipitated not only by a wish to report and comment on the bases on which the COP reached its decisions, but also to attract prurient interest in C’s sexual and relationship history. Family photos had been obtained and published in pixelated form. On 2 December a journalist had visited the home of A, asking to speak to A’s father without saying who she was by name. A reporter had asked questions about C in one of the pubs in the village where A and her father lived. C’s third ex-husband had been contacted in America and a journalist had been to see the husband of the housekeeper of flats where G had once lived.
The Respondents’ arguments that were later abandoned
The Respondents had initially submitted that the impact of publication of C’s identity did not engage the Article 8 rights of C’s daughters or alternatively their rights did not form the basis of an injunction. The Respondents also submitted that the duties of confidence owed to C in respect of her medical information should not find injunctive relief after her death.
Charles J said that the Respondents’ legal arguments at the two hearings that had later been dropped had been based on an understandable approach from their perspective of the circumstances that then existed and were ones they could properly advance. In regard to the media’s approaches to C’s family after her death, and that the Respondents had sought that the RRO should last until A’s 18th birthday (when she would be taking A-levels), Charles J said that an approach that lacks compassion or is callous does not mean that it is wrong or contrary to the balance of competing Convention rights. Further, if the Applicant wanted the RRO to continue after the death of her mother, an application to court supported by evidence was necessary. Even if the Respondents had provided undertakings, those undertakings would not have covered all of the reporting by the media. The application and the work done prior to the reciprocal agreement would have added little to the Applicant’s costs.
In the circumstances Charles J considered that making a costs order against the Respondents on their reporting and conduct would be arbitrary and unprincipled. Other media organisations had been criticised for their conduct but had not participated in the proceedings. Accordingly, the effect of a costs order against the Respondents would be to punish them for their participation in the proceedings and their opposition to the RRO. However, Charles J left the door open on whether there may be other cases where equivalent conduct could properly be taken into account when considering whether to make an order for costs or when considering the basis of those costs.
In opposing the application for costs the Respondents’ Counsel made several very important points. Applications for RROs are never made against individual media organisations but against the world at large. Therefore, even if certain media organisations consent to the application, this does not avoid the need for detailed consideration and for costs to be incurred by the Applicant. The risk of adverse costs order may deter media companies from challenging RROs which could have a chilling effect on the freedom of expression under Article 10. Applications against the media are often made on very short notice, and news organisations frequently had only limited access to the evidence relied upon by the Applicant.
The judgment is of concern to media organisations as Charles J appeared to suggest that in the future courts considering applications for costs orders against media organisations which have opposed RROs, or sought to limit their effects, will take into consideration the conduct of the media organisations and the manner in which the case has been reported. In this case the Sun, the Daily Mail, and the Times were criticised though the Sun had not been a party to the proceedings. Perhaps, Charles J would have been minded to grant a costs order in favour of the Applicant, if the Sun had chosen to participate in the proceedings.