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(Court of Protection, Henderson J, 7 October 2011)
The man made substantial cash gifts to a woman who had been caring for him. The man's daughter brought proceedings to set aside those gifts on the grounds of undue influence. The carer applied to the court for a determination of the man's capacity to decide whether the proceedings should continue. The court found the man did not have capacity for those purposes and the daughter applied for a costs order against the carer on an indemnity basis. The carer was ordered to pay her own costs and pay 75% of the daughter's costs based on her failure to comply with court directions.
The proceedings were settled by a Tomlin order which also compromised the carer's liability to pay the daughter's costs. The daughter sought a wasted costs order against the carer's solicitors.
The procedure for making a wasted costs order in the Court of Protection was the same as in the High Court. A wasted costs order could not be made once the proceedings were at an end and the Tomlin order effectively concluded the Court of Protection proceedings.
The Red Book is the acknowledged authority on practice and procedure