(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.