Tricker v Church & Anor [2013] EWCOP 2

Case Nos: 11229612 and 11229606[2013] EWCOP 2
COURT OF PROTECTION
MENTAL CAPACITY ACT 2005
Thomas More Building
Venue Royal Courts of JusticeDate 8 January 2013
London WC2A 2LL
Before
SENIOR JUDGE LUSH
Between
ANTOINETTE MARY TRICKERApplicantDENISE CHURCHRespondentsMARSHALL HATCHICK (a firm)Respondent
In the matters of FELIKS ZAKREWSKI, deceased
and
ROSEMARY ZAKREWSKI, deceased
The applicant in person and unrepresented for in personCharlotte Edge, instructed by Withers for respondentsHearing Hearing date: 13 December 2012
JUDGMENTSenior Judge Lush:The facts
[1]This is an application for reconsideration of an order made by District Judge Ralton on the papers on 4 May 2012. His order is set out in paragraph 41 below.[2]Feliks Zakrzewski was born in Poland on 17 April 1918 and used to work at the Ritz Hotel in Piccadilly, London.[3]His wife, Rosemary Zakrzewski, was born on 9 March 1920. She was a nurse.[4]They had two children, namely: ◦ Antoinette Mary Tricker, who was born on 6 March 1951, and lives in Saxmundham, Suffolk. ◦ Feliks Zakrzewski junior, who was born on 19 October 1952, and lives in Poole, Dorset.[5]In April 2004 Mr and Mrs Zakrzewski were both formally diagnosed as having dementia, and on 14 October 2004 their son, Feliks Zakrzewski junior, applied to be appointed as their receiver under the Mental Health Act 1983.[6]A week later, on 22 October 2004, Mrs Tricker moved her parents from Bournemouth, where they had lived since 1988, and took them to live with her and her family in Suffolk.[7]On 2 November 2004, Mrs Tricker, who was not on speaking terms with her brother at that time, objected to his application to be appointed receiver and made various allegations of fraud and financial irregularity against him. In response, he made similar allegations against her.[8]Because of the animosity within the family, on 8 February 2005 the court appointed a panel receiver, Denise Church, who was then with Barker Gotelee Solicitors, 41 Barrack Square, Martlesham Heath, Ipswich IP5 3RF, to act as receiver for both Mr and Mrs Zakrzewski.[9]Mrs Church was required to provide security of £20,000 in respect of each patient, for which an annual premium of £59 was payable. Paragraph 7 of the Master Bond, which Mrs Church entered into with the surety company, Norwich Union Insurance Limited, stated that:
“I and the surety company shall remain liable under the Master Bond until: (a) The patient’s death; (b) An order is made determining the proceedings; (c) A new receiver is appointed provided the court has approved any final account and directed that the security be discharged; or (d) An order is made by the court relieving me and/or the security company from any further liability under the Master Bond.” (a) The patient’s death; (b) An order is made determining the proceedings; (c) A new receiver is appointed provided the court has approved any final account and directed that the security be discharged; or (d) An order is made by the court relieving me and/or the security company from any further liability under the Master Bond.”
[10]Three weeks later, on 1 March 2005, Mrs Church left Barker Gotelee and joined another firm, Marshall Hatchick Solicitors of 2 New Street, Woodbridge, Suffolk IP12 1DN.[11]Following her parents’ move to Suffolk, Mrs Tricker experienced financial meltdown, which was mainly caused by the cost of building an extension to her house to accommodate her parents. She and her husband were funding the construction works by means of unsecured loans on a number of credit cards.[12]This financial crisis was exacerbated when, according to Mrs Tricker, her father reneged on a promise he had made to pay an additional £8,000 towards the construction costs, though, having regard to his mental state at that time, I doubt whether Mr Zakrzewski would have been capable of making a fully informed decision of that nature in the first place.[13]The financial difficulties and frustration that Mr and Mrs Tricker were experiencing were also compounded by a degree of uncertainty as to the full extent of Mr and Mrs Zakrzewski’s assets and liabilities and the procedural delays that were, regrettably, unavoidable in receivership applications, especially when there was an objection. As the crisis deepened, Mrs Tricker became increasingly more trenchant, persistent and petulant, and the relationship between her and Mrs Church soon broke down.[14]On 26 September 2005 Mrs Church wrote to Mrs Tricker in the following terms:
“I am sorry that the relationship between you as carer and me as receiver has broken down to such an extent. It cannot be in your parents’ best interests that I continue to act on their behalf and I have asked the court’s permission to step down. I am accountable to the court and I am happy to answer any questions the court may have about the way we have conducted the receivership. I do not think it would be helpful to engage in detailed correspondence between ourselves. I would however like to say that I have done my best to help you and have been very much aware of the financial pressures. I apologise for the delay in reimbursing you for the out of pocket expenses when you took your parents to Bournemouth. I was on holiday and under extreme pressure of work on my return as there was a backlog when I returned to the office. You may recall however that I did offer you a sum on account of expenses before the trip, but you were happy to wait until your return.”
[15]On 9 February 2006 Mrs Church was discharged as receiver and another member of the receivers’ panel, Ian Gerald Reed of Ashton Graham, Solicitors, Ipswich, was appointed as interim receiver in her place.[16]Paragraph 1 of the orders of 9 February 2006 stated as follows:
“The said Denise Church is discharged from the Receiver (sic) and is to render to the Court a final account and upon payment to the Receiver Ad Interim hereinafter appointed of any balance found due hereon her security is to be discharged and she is to pay any balance due thereon to the Receiver Ad Interim hereinafter appointed.”
[17]Although I have not personally seen Mrs Church’s final accounts, because the court’s file is in disarray after being pored over by numerous people, I am satisfied that they were rendered because there is a note on the minute sheet on the court’s file dated 7 March 2006, which states “Handover letter not required as final account lodged.”[18]In addition, there is a document at pages 136-142 of the bundle of documents produced for the hearing by Mrs Tricker, which appears to be a copy of Mrs Church’s final account; indeed, her only account as receiver.

Mrs Tricker’s complaints

[19]Even before Mrs Church was discharged as receiver, Mrs Tricker had lodged a formal complaint about her to the Public Guardianship Office (“the PGO”). In the first line of her letter of 10 December 2005 she said, “I wish to make a claim on my parents’ behalf under the security bond taken out by their receiver.”[20]In a reply dated 8 February 2006, Ms V J Walters of the PGO addressed most of Mrs Tricker’s complaints and concluded as follows:
“I will now deal with your request that the security bond be called in as you believe your parents have lost funds as a result of the receiver’s actions and delays. Before the court can authorise the calling in of a bond, a quantifiable loss needs to be established and there needs to be evidence that the loss is as a result of the actions or lack of actions by the receiver who can be said to have acted contrary to the conditions of the bond. Your letter setting out your claims has been referred to the receiver, Ms Church, who has provided a full report to this office and to the court regarding the allegations of loss. This office and the court is (sic) satisfied that it is not appropriate to authorise the calling in of the bond.”
[21]In addition to complaining to the PGO, Mrs Tricker complained about Mrs Church to:(a) Marshall Hatchick under the firm’s complaints procedure;(b) The Legal Complaints Service;(c) The Solicitors’ Regulation Authority;(d) Solicitors for the Elderly (“SFE”); and(e) The Adjudicator’s Office.[22]Apart from SFE, whose findings are set out in paragraphs 30 and 31 below, the organisations mentioned in the preceding paragraph either considered Mrs Tricker’s complaints and dismissed them, or informed her that they did not have the jurisdiction to investigate the complaints.[23]The complaint to Marshall Hatchick was made on a one-page pre-printed “Resolution form” addressed to the complaints handling partner a year and a day after Mrs Church had been discharged as receiver. Part 1 contained Mrs Tricker’s name, address and telephone number, and the remainder of the form stated as follows: Part 2 I want to make a complaint about the service I have received from your firm The person dealing with my case is or was Mrs Denise Church. My complaint is as per the attached sheet. Part 3 The solution I’d like I am happy for you to deal with the complaint in writing. I would like you to do the following to sort out my complaint: Reimburse me with £491. Signature: Antoinette M Tricker Date: 7 February 2007[24]On the attached sheet, Mrs Tricker stated how the sum of £491 had been calculated:
“In June 2005 I took my parents to Southbourne for a short holiday, and during this time I incurred expenses on their behalf. Mrs Church asked me to do some work for her whilst I was there (viz. prepare an inventory of items in their flat and take photographs of the rooms). This I did (and more), and as a result I incurred expenses on their behalf (namely the purchase of a disposable camera and photo development charges). On July 7th I submitted a letter to Mrs Church, including a note of my expenses. On 19th July Mrs Church thanked me for my letter and promised to deal with all matters relating to my parents’ affairs early the following week (viz. week beginning 25 July). Mrs Church was fully aware that, as a family, we had gone into horrendous debt for my parents, who had defaulted on their promise to pay for an extension we had built for them at our house (as both became severely mentally impaired during the lengthy process of building the extension). She knew that we were treading a financial tightrope, trying to get back on track financially, and that it was imperative we balanced outgoings carefully against incomings. On 2nd August I faxed her a letter chasing payment of my expenses (£214.46). On 4th August I telephoned her secretary who said she would get Mrs Church to call me back as soon as she came in. However, Mrs Church did not call me, neither did she heed my letter. I faxed a second letter to her on 4th August, stressing how urgently I needed the funds, but again Mrs Church ignored this letter. I subsequently faxed three separate letters to Mr Sparrow, senior partner, advising that I was incurring bank charges as a result of Mrs Church’s refusal to pay me, but again these were ignored. Eventually, I had to approach the PGO, who put pressure on Mrs Church to pay me, and it was only after their intervention that Mrs Church finally reimbursed my expenses – by which time we had incurred some £561 worth of charges from our banks. I persuaded my bank to let me off the first set of charges (£70), but in the end my husband and I were left with charges totalling £491, plus interest on these.”
[25]On 12 March 2007 Nicholas Marshall of Marshall Hatchick acknowledged receipt of the complaint resolution form, and concluded his response by stating, “I cannot accept that this firm is responsible for your financial situation and the resultant bank charges.”[26]Feliks Zakrzewski died on 29 November 2007, and on 14 April 2008 letters of administration (with the will and two codicils annexed) were granted to Ian Reed for the use and benefit of Rosemary Zakrzewski until further representation be granted.[27]Rosemary Zakrzewski died on 4 January 2009. Probate of her will and two codicils was granted to Feliks Zakrzewski junior and Antoinette Mary Tricker on 29 May 2009.

Solicitors for the Elderly’s complaints investigation

[28]Solicitors for the Elderly is an independent national association of lawyers whose function is to improve the availability and delivery or specialist legal advice to older people and their families and carers. Its members are expected to follow a Code of Practice and regularly receive training and information to keep up to date with the law as it affects elderly and vulnerable adults. Membership is based on proving experience and expertise.[29]At this point, I must declare an interest. Along with District Judge Gordon Ashton OBE, I am one of the two patrons of SFE, though I do not consider that this in any way disqualifies me from adjudicating on Mrs Tricker’s application.[30]SFE produced a ten page report on Mrs Tricker’s complaints. It is undated, but it was compiled in 2008 and can be summarised as follows: 1. Failure to sort out pensions within a reasonable period of time. Upheld in respect of the failure to apply for Pension Credit 2. Asking Mrs Tricker to claim attendance allowance Not upheld 3. Failure to provide the clients with funds for their food, living expenses and spending money Not upheld 4. Failure to pay Mrs Tricker’s expenses Upheld in so far as it was not as timely as it could have been 5. Failure to place urgent matters before the Court of Protection Upheld in part as Mrs Tricker’s letter of the 24th June to Mrs Church was copied to the PGO and she may have concluded the matter was therefore before the Court. However, it was not until August that Mrs Church looked at the matter. The PGO was also aware of the problem and had they responded to the request and put the matter before the Court, Mrs Tricker would have been put in funds sooner. 6. Failure to liaise with social services Not upheld 7. Forcing others to perform duties that were Mrs Church’s responsibility and for which she was being paid Not upheld 8. Failure to respond promptly to requests Not upheld 9. Broken promises Not upheld 10. Failure to liaise with Mrs Tricker on transferring the client into a care home Not upheld 11. Failure to pay Mrs Tricker a fair rate for caring for the clients Not upheld[31]The SFE report ended with the following conclusion and recommendation:
“During the time Mrs Church acted in the receivership she was under huge pressure due to the firm taking on another practice. There were some delays, which in most receivership cases would not cause a significant problem as it is a ‘by product’ of this type of work. Evidence of this is peppered throughout with delays with both the Court of Protection and the PGO. However there were times when Mrs Church had not proceeded with issues as quickly as she would have liked. Mrs Church’s duty and obligations were to Mr and Mrs Zakrzewski and not to Mrs Tricker. She had a difficult task in managing Mrs Tricker’s expectations of how the matter progressed and there was evidence of times when Mrs Church put herself out beyond what would be expected of a professional receiver, such as when she personally delivered a cheque to Mrs Tricker. We recommend that Mrs Church undertakes further training on welfare benefits applicable for deputyship/attorneyship clients as there was evidence she needed more knowledge on pension credit.”
[32]Although Mrs Church failed to apply for pension credit, her successor as receiver, Ian Reed, managed to obtain it and have it backdated to December 2004. Pension credit can be backdated for a maximum of three months.

Proceedings in the Costs Office

[33]On 1 December 2006 a final costs certificate in respect of Mrs Church’s costs as receiver was issued in the sum of £18,634.84 including VAT and the costs of the detailed assessment. I am informed that since then there have been seven costs hearings.[34]In November 2009 Mrs Tricker challenged the costs in the Senior Courts Costs Office. The application was initially considered by Master Gordon-Saker on 9 July 2010, who set aside the final costs certificate of 1 December 2006, and ordered that there be a detailed assessment of Marshall Hatchick’s costs.[35]There was a hearing before a Costs Judge, Master Haworth, and on 18 February 2011 he made an order allowing Marshall Hatchick total costs of £14,215.80 including VAT.[36]Mrs Tricker appealed Master Haworth’s order, and on 13 December 2011 Mr Justice Wilkie ordered as follows: 1. This appeal is allowed to the extent that the respondent’s bill for taxation shall be reduced by the sum of £1,051.80. 2. The respondent shall pay interest on the said judgment sum at the rate of 3% per annum from the 1st November 2009 until the date hereof. 3. The appellant’s costs of this appeal are summarily assessed in the sum of £2,000 and shall be paid by the respondent to the appellant.

The application

[37]On 28 November 2011 Mrs Tricker applied to the Court of Protection for an order to enforce Mrs Church’s security bonds.[38]On 26 January 2012 District Judge Ralton made a directions order in which he required:(1) Mrs Tricker to serve the application on Mrs Church.(2) Mrs Tricker to file and serve further evidence as to how the loss had been established and the amount of the loss;(3) Mrs Church to file and serve a position statement by 13 March 2012; and(4) The matter to be referred again to him on or after 20 March 2012.[39]The losses that Mrs Tricker claims were caused by Mrs Church in her capacity as Mr and Mrs Zakrzewski’s receiver are as follows: LOSS TO ANTOINETTE TRICKER £ 1. Costs incurred in pursuing a re-assessment of the bill of costs at the Senior Courts Costs Office and the Royal Courts of Justice, Queen’s Bench Division (7 hearings) and costs incurred in bringing a Court of Protection Application 8,224 2. Expenses and time incurred in raising complaints about the bill of costs and Denise Church’s conduct between December 2004 and November 2009, all of which were dismissed by the PGO, the SRA and Marshall Hatchick 2,000 LOSS TO THE ESTATE 3. Loss of interest on moneys held inappropriately by Marshall Hatchick 1,312 4. Losses caused through mismanagement of my parent’s funds 8,376 5. Refund of fixed costs taken by Marshall Hatchick for preparing annual Accounts 470 6. Inappropriate charges for making malicious and unsubstantiated Statements and allegations to third parties 1,143 ______ TOTAL £21,525[40]On 13 March 2012 Alex Ruck Keene of counsel prepared a position statement on behalf of Denise Church and Marshall Hatchick, to whom he referred respectively as DC and MH, which he concluded as follows:
“For the reasons set out above, it is submitted on behalf of both DC and MH that this application should be dismissed. The application represents the re-running either of matters which were or should have been raised during the course of the detailed assessment process, or of matters raised previously with the (then) PGO, and which the PGO, upon investigation, found to be without merit. …. If the court dismisses this application, then MH will seek its costs of responding to it on its behalf and of DC out of the estates of FZ and RZ in accordance with the provisions of Rule 156 of the Court of Protection Rules. If the court considers that AT has acted other than as executrix of her parents’ estates in bringing all or part of these proceedings, then MH will seek its costs associated with those parts from AT personally.”

District Judge Ralton’s order

[41]On 4 May 2012 District Judge Ralton made the following[42]Marshall Hatchick’s costs in relation to defending the action were assessed by the Costs Office at £10,465, but have not yet been paid.

Application for reconsideration

[43]On 29 May 2012 Antoinette Tricker submitted a COP9 seeking a reconsideration of District Judge Ralton’s order of 4 May 2012 at an attended hearing.[44]On 30 October 2012 I listed the application for hearing on Thursday 13 December 2012.

The applicant’s skeleton argument

[45]Mrs Tricker submitted a skeleton argument for the hearing, which concluded as follows:
“This case should never have been allowed to continue for 7 years, as it has. Had the PGO carried out an unbiased investigation into my complaint/claim in 2005 and had they ensured DC’s compliance with panel receiver rules, this would not have become a contentious matter. The reason that it has escalated to this level is because all concerned within the system, have ‘protected the deputy’ and catered for her best interests, rather than those of her vulnerable clients. If the Order is allowed to stand, it will deliver a clear message to the public that there is no point in trying to expose financial abuse of vulnerable clients, since even if this is achieved, the clients will be forced to pay. This is clearly unjust, unfair and unreasonable. The present position for the clients in this case is that to date, they have been forced to pay in the region of £40,000 for an ineffective and abusive receivership service, for which the only real; financial outcome was the payment of 13 bills. They paid £20,000 to MH for this ‘non-service’, a further £400 to the SCCO for carrying out an inadequate assessment of the bill of costs and £470 to the PGO for failing to monitor the deputy. They have also incurred losses estimated at around £12,000 for bringing court actions which should not have been necessary, and been asked to pay MH/DC’s costs of around £11,000, when MH/DC fought to stop the estate claiming on security bonds, which the clients had paid for. Justice will not have been served unless this current position is rectified/reversed and the Applicant places all her faith in the Court of Protection to ensure that this is finally delivered to the vulnerable clients.”

The respondent’s skeleton argument

[46]In her skeleton argument on behalf of the respondents, Miss Charlotte Edge of counsel stated:
“It is submitted that Mrs Tricker’s application raises significant legal and jurisdictional difficulties which mean that even if (contrary to the evidence of Mr Marshall and Mrs Church and the determinations of the PGO and SFE) Mrs Tricker’s factual allegations were correct, the court would be unable to grant her the relief she seeks. Those difficulties, in summary, are that: (1) the claims made by Mrs Tricker [in respect of Marshall Hatchick’s bill of costs] have already been fully determined and considered by the Supreme Court Costs Office and, on appeal, by the Queen’s Bench Division of the High Court; (2) much of the alleged loss for which Mrs Tricker seeks compensation appears to have been suffered by her personally and so is not loss for which the Court of Protection can award compensation (whether by enforcement of the Master Bond or otherwise). (3) even if the alleged loss complained of by Mrs Tricker were within the jurisdiction of the Court of Protection the court does not have jurisdiction to order damages against Mrs Church or Marshall Hatchick, which Mrs Tricker appears to seek; (4) it is questionable whether the court is able to enforce the Master Bonds, given their terms and the deaths of Mr and Mrs Zakrzewski; and (5) all of the points relating to alleged “mismanagement” of Mr and Mrs Zakrzewski’s affairs relied on by Mrs Tricker in the application were raised by her at the time with the PGO as part of a specific request for the court to consider a claim against the Master Bonds and were dismissed by the PGO in their entirety. To the extent that the PGO (now the Office of the Public Guardian) is the appropriate body to determine whether a loss has been suffered which could be enforced against the bonds it is submitted that such a determination has already been made.”
[47]Miss Edge concluded her skeleton argument by stating:
“It is submitted that for the reasons set out above even if Mrs Tricker were able to establish each and every one of her factual allegations she has no prospect of succeeding on the application because each point alleged by her is either (a) res judicata, (b) outside the jurisdiction of the court, or (c) does not establish a loss to Mr or Mrs Zakrzewski’s estate. Even if the court is able to enforce the Master Bonds (which it is submitted is at best doubtful for the reasons set out above) it is submitted that there is therefore no element of the loss alleged by Mrs Tricker which could appropriately be addressed by enforcement. The court is therefore asked to confirm the order of District Judge Ralton of 4 May 2012 and dismiss the application.”

The hearing

[48]The hearing took place on Thursday 13 December 2012 and was attended by: ◦ Antoinette Tricker, accompanied by her son, Adam Tricker; and ◦ Charlotte Edge (counsel), Alexander Breedon (Withers Solicitors), Nicholas Marshall (Marshall Hatchick) and Denise Church.

The law relating to security in the Court of Protection

[49]As I mentioned in paragraph 15, Mrs Church was discharged as receiver and Ian Reed was appointed in her place by an order dated 6 February 2006.[50]The Mental Capacity Act 2005, which governs the current law, practice and procedure relating to Court of Protection proceedings, did not come into force until 1 October 2007. Accordingly, the provisions that applied before that date, under the Mental Health Act 1983 and the Court of Protection Rules 2001, relate to this application. There are some major differences in the law, practice and procedure between these two regimes, but there is no need for me to consider them for the purpose of this decision.[51]Rules 56 to 60 of the 2001 Rules dealt with specifically with security, and rule 65, which was headed “Final accounts” provided as follows:(1) Every receiver shall on the death or recovery of the patient for whom he has been appointed receiver, deliver his final account to the court within such time and in such manner as the court shall direct.(2) On the discharge or death of a receiver, the receiver, or in the case of his death, his personal representatives, shall deliver a final account to the court within such time as the court shall direct.(3) The court shall pass the account of the receiver from the date of the receiver’s last account or, if no account has previously been passed, from the date of his appointment, unless in the opinion of the court the passing of such accounts may properly be dispensed with.(4) If a balance is found due from the receiver or his estate, he or his personal representatives (as the case may be) shall pay it into court or otherwise deal with it as the court may direct.(5) If a balance is found due to the receiver or his estate, it shall be paid to him or his personal representatives (as the case may be) by the patient out of the patient’s estate.(6) On payment of any balance found due from a receiver, or if no balance is found due from him or the passing of his accounts has been dispensed with under paragraph (1), the security of the receiver shall be discharged.

Decision

[52]The orders of 9 December 2006, in which Mrs Church was discharged as receiver for Mr and Mrs Zakrzewski, were drafted in compliance with the Court of Protection Rules and provided as follows:
“The said Denise Church is discharged from the Receiver (sic) and is to render to the Court a final account and upon payment to the Receiver Ad Interim hereinafter appointed of any balance found due hereon her security is to be discharged and she is to pay any balance due thereon to the Receiver Ad Interim hereinafter appointed.”
[53]Mrs Church did render a final account to the court, which appears to have been passed, and she paid the balance on the accounts to Ian Reed, who was appointed as interim receiver in the same orders.[54]Apparently, the bonds, which are held by Marsh Ltd., the insurance broker, are still live because neither Marsh nor its predecessor, HSBC Brokers, were formally notified that Mrs Church’s security had been discharged.[55]However, even though the bonds are still extant, they could not be enforced against the surety company because the events specified in paragraphs 7(a) and (c) of the Master Bond - namely, the deaths of the patients and the appointment of a new receiver following approval of the final accounts and a direction that the security be discharged - have occurred and Mrs Church and the surety company are no longer liable under the Master Bond.[56]Accordingly, I dismiss Mrs Tricker’s application to call in the bonds on the ground that the bonds are no longer enforceable.[57]No doubt, Mrs Tricker will feel that that justice has been denied to her purely because of a technicality, but, even in the absence of this as the primary reason for dismissing the application, I would have had no hesitation in upholding District Judge Ralton’s order for the reasons stated by him in his order of 4 May 2012 and also for the reasons given by Alex Ruck Keene and Charlotte Edge of counsel in their skeleton arguments; namely,(1) that Mrs Tricker’s claims are a reiteration of matters that have already been judicially decided in the costs hearings and complaints that were considered but dismissed by the Public Guardianship Office, and(2) nearly half of her claims relate to her own personal loss, rather than loss to the estates of Mr and Mrs Zakrzewski.

Costs

[58]Rule 156 of the Court of Protection Rules 2007 sets out the general rule on costs in property and affairs cases, such as this, in the following terms:
“Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings, or of that part of the proceedings that concerns P’s property and affairs, shall be paid by P or charged to his estate.”
[59]Rule 159 sets out the circumstances in which the court may depart from the general rule:(1) The court may depart from rules 156 to 158 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances, including: (a) the conduct of the parties; (b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and (c) the role of any public body involved in the proceedings.(2) The conduct of the parties includes: (a) conduct before, as well as during, the proceedings; (b) whether it was reasonable for a party to raise, pursue or contest a particular issue; (c) the manner in which a party has made or responded to an application or a particular issue; and (d) whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response.(3) Without prejudice to rules 156 to 158 and the foregoing provisions of this rule, the court may permit a party to recover their fixed costs in accordance with the relevant practice direction.[60]Although I affirm most of District Judge Ralton’s order, albeit for a different reason, I am not prepared to uphold his order that the costs of the parties be paid out of the estates of Feliks and Rosemary Zakrzewski. This is a case in which the circumstances justify a departure from the general rule.[61]Under the terms of Mr and Mrs Zakrzewski’s wills their estates were to be divided equally between Mrs Tricker and her brother.[62]Mrs Tricker embarked upon these proceedings as if she were on a crusade and, although she may have won the occasional battle, her victory has been pyrrhic. The manner in which she has raised, pursued and contested these proceedings has been disproportionate and her assertions regarding “fraud”, “bias”, “cover up” and “vulnerable clients” have been overstated. There was no fraud on Mrs Church’s part and the charges of bias and cover-up that Mrs Tricker levelled against both the Office of the Public Guardian and Solicitors for the Elderly are without foundation.[63]Insofar as the PGO, as it was known in December 2005, acted as the gatekeeper with regard to Mrs Tricker’s request to enforce the security on her parents’ estates, it looked at her complaint, considered the matters that it was required to consider, disregarded those that were irrelevant, directed itself properly as to the law, and came to an even-handed conclusion. Its decision not to call in the bonds in Mrs Church’s case was a reasonable exercise of its discretion.[64]There is a darker, more sinister side to this application. Mrs Tricker seems to be determined to wreck Mrs Church’s reputation and career: otherwise, her complaints to the professional and regulatory bodies referred to in paragraph 21 above would make no sense. To some extent she has succeeded. In his witness statement dated 30 November 2012, Nicholas Marshall commented:
“I would like to say at this point that I have known Mrs Church for 15 years and know her to be a person of the highest integrity and professionalism. She is held in high esteem by professional colleagues in the Suffolk/North Essex area where she practised for over 30 years and was chair of the Suffolk and North Essex branch of the Society of Trust and Estate Practitioners for several years up to 2006 as well as a panel receiver to the Court of Protection. Mrs Church has told me that the persecution which she feels she has been subjected to by Mrs Tricker was a factor in her taking early retirement. Having seen the way in which Mrs Tricker has pursued her complaints against Mrs Church and, having been directly involved in this matter myself, I can well believe this to be the case.”
[65]Mrs Tricker’s complaints have shifted like quicksand, as can be seen, for example, by comparing three of the paragraphs above - 23, 30 and 39 - and it would have been a grossly disproportionate response to have struck off or suspended Mrs Church from the roll, or to have removed her from the receivers’ panel, or to have deprived her of membership of Solicitors for the Elderly, or to have called in the security bonds in respect of the delayed payment of the expenses Mrs Tricker incurred on a trip to Southbourne, as described in paragraph 24 above, especially in the light of Mrs Church’s offer, referred to in paragraph 14, to make an payment to her on account of her likely expenses before she undertook that trip.[66]Mrs Tricker’s brother has not played any part in these proceedings and, in my judgment, it would be unjust to penalise him by requiring him to pay a half of the costs incurred by Mrs Tricker in pursuit of her claim. Accordingly, I order that Marshall Hatchick’s costs be assessed on the standard basis and paid by Mrs Tricker personally.

order

WHEREAS the Court considers that:(1) An application has been made by Antoinette Mary Tricker, as executor of the estates of Feliks Zakrzewski and Rosemary Zakrzewski (both deceased), for an order to enforce the security bonds arranged by Denise Church the former receiver for Feliks Zakrzewski and Rosemary Zakrzewski.(2) The court gave directions on 26th January 2012.(3) Evidence and position statements have been filed.(4) The Court of Protection has no jurisdiction to entertain financial claims made against Marshall Hatchick (a firm) and any claim (should there be one) must be made to a court of civil jurisdiction.(5) To make an order enforcing security the court must be satisfied that: (a) the receiver caused loss to the estate(s) of the persons for whom she was acting (b) the loss resulted from misappropriation or neglect (c) it is appropriate to enforce the security.(6) It is an abuse of process to apply to enforce security in respect of any outlay from the estate which has been deemed by another court as appropriate.(7) The claims made by the applicant: (a) comprise a collateral attack on orders made by other courts and or; (b) do not establish loss and or; (c) do not establish misappropriation or neglect by the receiver.(8) In its discretion given: (a) the time elapsed (b) the patients have died (c) the nature of the complaints (d) the absence of evidence from the Public Guardian to support the applicant (e) the availability of remedies in the civil courts it would not be appropriate to enforce the security. IT IS ORDERED that: 1. Further to the order of 26th January 2012 and for the avoidance of doubt the former receiver Denise Church is the only respondent to the application. 2. The application is refused. 3. The costs of the parties shall be assessed by the Senior Courts Cost Office and shall be paid out of the estates of Feliks Zakrzewski and Rosemary Zakrzewski. 4. Any person who is affected by this order may apply to the court (in a COP9) within 21 days of the order being served for reconsideration.