Can a non-solicitor Deputy charge fees at the solicitors’ rate?

In the recent case of The Office of Public Guardian v Andrew Riddle (Nos 1 and 2) Senior Judge Hilder had to decide if the professional Deputy could charge fees at the solicitors’ rate.

Background.

Mr Andrew Riddle is the managing director of ‘Professional Deputies’ that offers services that manage the property and affairs of adults who lack capacity. Mr Riddle is not a solicitor and Professional Deputies is not a Solicitors practice.

His primary position is that he should be able to charge fees at the solicitors’ rate, but he also had a secondary position in that he should be authorised to charge fees at a tailored rate, somewhere between public authority and solicitor rates.

The OPG’s position was that Mr Riddle should not be charging the solicitors’ rate until the Court of Protection makes an order to state otherwise.

Hearing

At the initial hearing, the Court was not satisfied that the deputy’s account of his qualifications and experience justified any conclusion that he should be remunerated at a higher rate than public authority deputies.

Judge Hilder held (at paragraph 104) that it would be appropriate to exercise the court’s discretion to extend the solicitors’ costs provisions to a non-solicitor deputy where that deputy demonstrates that they are also subject to professional obligations comparable to those integral to being a solicitor, and where that non-solicitor deputy accepts being held to the same standards as a solicitor. 

However, she considered the facts of the case and his experience and qualifications but was satisfied he did not fulfil these benchmarks.

She did acknowledged that Mr Riddle was not alone in requesting a review of the fixed rates under Practice Direction 19B, as the rates have not increased since 2010 and The Professional Deputies Forum argues that rates are now therefore 31% lower in real terms than they were in 2010.  She also noted that, there was a current review of solicitors’ guidelines rates in civil cases, which have also not been increased since 2010.

In paragraph 106, Judge Hilder observed that the rates of Practice Direction 19B should be similarly reviewed.  However, that does not provide any basis for unilaterally behaving as if the rates are other than as they are. Until there is a review, she could not give any weight to this part of Mr. Riddle’s argument as to do so would undermine the Practice Direction.

Senior Judge Hilder thereafter, made orders refusing Mr. Riddle’s applications for authorisation to charge fees at the solicitors’ rate and refused his applications for relief from liability for past charges. She also allowed Mr Riddle a period of time to make good his word and restore each estate to its rightful level.

At the second hearing, the judgement held that Mr Riddle had been good to his word, and that the Public Guardian did not now seek revocation of his appointment in those cases. The judgment also confirmed that Judge Hilder had refused his application to charge fees at anything other than the public authority rates.

It was also agreed that each party should bear their own costs, and the Judge rejected the claim for the Public Guardian to pay any part of his costs.

This case highlights that when non solicitor deputies are managing the property and affairs of those with incapacity; they should carefully check the specific terms in the Deputyship order to ensure their charging rates are in line with the order. If the Deputy has any doubts, they should contact the OPG and then if necessary, seek authority from the Court.

The judgement also gives the OPG the standing to challenge cases and bring these to the courts attention without the consequence of having a costs order made against them.

Brian Ferry is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact him at Brian.Ferry@clarionsolicitors.com and 07741 663809 or the Clarion Costs Team on 0113 246 0622.

Child Trust Funds and access for those who do not have mental capacity

From 1st of September 2020, it is estimated that hundreds of thousands of teenagers can access their Child Trust Fund money given to them when they were born. The UK Government introduced the Child Trust Funds scheme in 2005 with the aim of ensuring that every child has savings at the age of 18.

Child Trust Funds gave between £250 and £1,000 of Government cash to all children born between 1 September 2002 and 2 January 2011. Parents could add to the fund until the child turned 18, when they have access to the monies, plus interest.

However, there was no consideration for those who may not have the mental capacity to be able to access and manage their funds at the age of 18. It is predicted that tens of thousands of disabled children are affected and are disadvantaged.

If they do not have capacity, then their families or carers will need to apply to the Court of Protection to act as the child’s Deputy. It is estimated that the process can cost from £365.00 for the Court Application to £2,500.00 for solicitor involvement. This could potentially be a sum which may exceed the amount held in the Child Trust Fund in the first place. Furthermore, given the current position with COVID 19, there is potential for delays on applying which would add further pressure to Court resources.

Missing the deadline to access funds means that the money is switched into a new account by the Child Trust Fund provider, which are allowed to pay less interest under HM Revenue and Customs rules. There is a current campaign for change to the system to ensure that more children will be able access their funds without incurring large fees.

The hope is that the government will take a practical approach under these circumstances and that a procedure can be put in place which allows families to gain access to their children’s funds without the added expense and potential delay when applying through the Court of Protection.

Brian Ferry is a Costs Lawyer in the Costs Department at Clarion Solicitors. You can contact him on 07741 663809 or by email to Brian.Ferry@clarionsolicitors.com

OPG v DJN

In this case, the Office of Public Guardian applied to the Court of Protection to revoke a Lasting Power of Attorney that had been made by P, which appointed his son (DN) as his attorney. He subsequently lost capacity and concerns were raised as to whether or not P had the appropriate level of capacity at the time it was prepared. It had been investigated and concerns were raised that DN had not acted in the P’s best interests by selling his residence and transferring the majority of the proceeds to himself and mixing the finances by operating a joint account.

In December 2017, a district judge suspended the operation of the LPA and directed the appointment of an interim deputy. This order was formalised shortly after.

DN contested the substantive application. He maintained that P had capacity at all relevant times and denied any wrongdoing.

At the final hearing on 17 and 18 June 2019, the OPG’s application was dismissed, DN’s attorneyship was restored and the appointment of the interim Deputy was discharged.

DN sought an order for costs of £82,000 and argued that the hostile approach taken by the OPG was wrong. A detailed skeleton argument in support of the point that the OPG had behaved unreasonably in the matter was submitted for the court to justify departing from the normal costs rule.

The OPG rebutted this with arguments that its approach was not hostile but simply fulfilling its duties under s58 MCA 2005 and the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2017.

The Counsel for the OPG stated “In the alternative, if the court concluded that a costs order would leave P with insufficient funds, the court should make no order for costs. This would mean that the Public Guardian would bear his own costs and DN’s costs would be met from the monies he received from P.” Whatever position the court adopted, Ms Rich said that “this was certainly not a case where the Public Guardian should be made to pay the other party’s costs.”

Rule 19.2 of the Court of Protection Rules 2017 states that where proceedings concern P’s property and affairs, that the costs of the proceedings shall be paid by P or charged to P’s estate.

Rule 19.5 provides that: (1) the Court may depart from rules 19.2-19.4 if the circumstances so justify, and in deciding whether departure is justified the court would have regard to all the circumstances including; (a) the conduct of the parties.

The Public Guardian adopted what seemed to be a standard approach to litigation based on his approach to other cases. This was a serious failure especially when rule 1.4 COPR 2017 expects litigants to comply with the overriding objective. This obligation applies equally to the Public Guardian.

The judge concluded that there was good reason to depart from the usual costs rules as a result of the OPG failing to review the capacity evidence appropriately prior to commencing proceedings. Had this been done, the “obvious deficiencies” would have been noted.

Having consideration to the relevant law and the parties’ submissions, the order made was that the Public Guardian was not entitled to be paid his own costs from P’s funds and that he should pay 50% of DN’s costs (which shall include the costs of the appeal hearing) all of which shall be assessed at the Senior Courts Costs Office by a Costs Judge.

If you have any queries please contact Bridie Sanderson at bridie.sanderson@clarionsolicitors.com or 0113 336 3350.

Penalty for failing to serve a costs budget is variable

The sanction for failing to file a costs budget is clear under CPR 3.14; court fees only, unless the court otherwise orders. The CPR is silent however on the penalty for failing to serve a costs budget.

An unreported case was referred to recently in the ACL Costs News bulletin which described how a claimant who failed to serve their budget had their CMC costs cut in half as a penalty. The result of the failure to serve the budget led to the opponent having a reduced timeframe to prepare the budget discussion report but it did not prevent the CMC from going ahead. In this instance the Claimant did not need to seek relief from sanctions as the requirement to do so, where the CPR is silent, is not automatic.

In Djurberg v London Borough of Richmond and Others [2019] EWHC 3342 (Ch) it was held that a party in breach does not need to apply for relief from sanctions where it is not expressly required. At paragraph 32 Chief Master Marsh stated:

“it would be wrong for the court to search out reasons for imposing sanctions that do not obviously arise out of the terms of the CPR or an order made by the court.”

The judgement in this case also explored the possibility of the order containing an implied sanction, a concept that R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633 referred to in relation to filing an appeal in time. In circumstances where there is an implied sanction, a sanction where relief from sanctions is not necessary but where it has become common practice to impose the same sanction as if it were, the consequence would be the same.

To rely on submissions that the opponent was not prejudiced by any failure to serve a budget does not therefore come without risk, and so to avoid any penalty whatsoever, the best approach to take when filing a budget is to serve it too.

This does not preclude parties agreeing to the mutual exchange of budgets and for certain cases this can be the best strategy to adopt. If this approach is accepted by the parties then any agreement of mutual exchange should be made prior to the final date for filing to avoid facing any criticism.

Bethany Collings is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at Bethany.Collings@clarionsolicitors.com and 0113 227 3607, or the Clarion Costs Team on 0113 246 0622

Is it in P’s best interests for the Local Authority Deputy to be discharged?

The recent case of Cumbria County Council v A (2020) highlights the importance of the Deputy’s role and the process when the Local Authority no longer wishes to act as Deputy.

The Local Authority expressed a wish to cease being a property and affairs Deputy and instead, have a professional Deputy appointed for 7 individuals. However, the Court were mindful that this was likely to cost the Protected Party more than double in all cases to transfer from a Local Authority Deputy to a professional, therefore it was necessary to consider whether this was in the Protected Party’s best interests. The Public Guardian contended that generally, if a Deputy no longer consents to act, the Court cannot decline an Application to discharge, but the Court was required to consider all the facts.

The significant concern was the question of costs and there was suggestion that the Court should consider the approach taken by Cumbria County Council in no longer wishing to act as Deputy and whether this complied with Section 149 of the Equality Act 2010. The Court confirmed that they were not able to grant a public law remedy in such circumstances. Hayden J emphasised that The Mental Capacity Act 2005 and the Court of Protection reflect precisely the same philosophy and that was the underpinning of the Equality Act 2010.

Hayden J concluded that the decision to discharge a Deputy is one for the Court, acting within parameters of reasonable discretion and that they will be required to evaluate the strength of the welfare interests to the Protected Party. There can be no presumption of the conclusion and each application must be brought before the Court. The guide will always be in the Protected Party’s best interests, including his/her financial interests. The Court will focus on the impact of the Protected Party by either granting or refusing the Application. On the facts, the Application in this case was granted.

On the basis of the above, always consider the Protected Party’s best interests when determining who should be appointed as Deputy.

The judgment can be found here: https://www.bailii.org/ew/cases/EWCOP/2020/38.html

If you have any questions, please contact Tanya Foran at Tanya.Foran@clarionsolicitors.com or call 0113 246 3240.

Lock Up and Cash Flow: How the Precedent H Costs Budget can assist – updating and monitoring is key

Please see our Costs Management team’s first of many podcasts. We include useful tips regarding how the precedent H Cost Budget can assist with lock up and cash-flow. We also discuss the statement of truth and the importance of the incurred cos. To view please follow this link.

Featured in this podcast is Sue Fox, who is a Senior Associate and the Head of the Costs Management team in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at sue.fox@clarionsolicitors.com and 0113 336 3389.

And, Anna Lockyer who is an Associate in the specialist Costs Management team in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at anna.lockyer@clarionsolicitors.com and 0113 288 5619.

Mis-Certification of a Bill of Costs – Be careful!

Back in May, I posted a Vlog about the SRA’s decision following the Court of Appeal’s Judgment in Gempride v Bamrah [2018] EWCA Civ 1367. You can view that Vlog here.

I was therefore very interested to read the recent decision of Master James in the case of Farmer v The Chief Constable of Lancashire [2019] EWHC B18 (Costs) and to share it with you. Here are the key points:

  1. Mr Farmer (“the Receiving Party”) had the benefit of a costs order against the Defendant (“the Paying Party”).
  2. A Bill of Costs was prepared, and detailed assessment proceedings were commenced. The original Bill of Costs totalled £174,565.79.
  3. There were issues over the validity of Conditional Fee Agreements, recoverability of success fees and incorrect hourly rates which led to the service of an amended bill in the sum of £116,192.50.  That total was also incorrect, and the Court found that the bill should have been drawn in the region of £66,000 to £69,000.
  4. The Bill of Costs had been certified as accurate and true. Certain points/items were also maintained through Replies and a Witness Statement.
  5. Had the Bill of Costs been prepared correctly, then the matter would have been dealt with under the Provisional Assessment scheme. This would have saved substantial time and cost for each party and the Court.
  6. There were also costs included in the Bill of Costs which were not recoverable inter-partes.
  7. The Paying party applied to strike out the remainder of the Bill of Costs, pursuant to CPR 44.11.
  8. The Court struck out the remainder of the Bill of Costs; the Receiving Party was entitled to nothing.
  9. The Receiving Party was ordered to pay the costs of the detailed assessment and re-pay the payments on account received.

In Gempride the penalty reduction was 50%. In this case the penalty reduction was a full strike out of the remainder of the costs (circa. £66,000.00 – £69,000.00).

It is fundamentally important to ensure a Bill of Costs has been prepared correctly before you certify it. Mis-certification of a Bill of Costs is a serious issue.

Mistakes happen and the Court will look more favourably on innocent mistakes which are rectified quickly. In this case, the Receiving Party pursued the matter to detailed assessment and maintained retainers that were clearly not enforceable.  

In my Vlog in May, I provided 5 tips to help ensure that you avoid any mis-certification issues. Please view the Vlog to help you check a Bill of Costs (or a costs budget or statement of costs for summary assessment) correctly and to stay clear of any mis-certification arguments and costs penalties. You might want to use my 5 tips to create an internal check-list.

This blog was written by Andrew McAulay. Andrew is a Partner at Clarion and the Head of the Costs and Litigation Funding Team. Andrew can be contacted on 0113 336 3334 or at andrew.mcaulay@clarionsolicitors.com

Lockdown Lowdown – The OPG

This blog forms part of a series of weekly interviews with several professionals during lockdown. It aims to inform Deputies and their teams about how each organisation within the field of Court of Protection has adapted to Covid-19 and what they should be aware of. Our fifth participant for Lockdown Lowdown is Ria Baxendale from the Office of the Public Guardian.

Q1. How have the OPG adapted to lockdown?

We have robust plans in place that ensure we can continue to deliver our services and we are working hard to maintain this. The deputyship team performance is being maintained throughout the period though it’s worth noting, that when the posting items to us, there can be some delays in receiving information and recommend using email where possible.

OPG remains committed to carrying out our duties, for example, in investigations we’ve prioritised those most at risk, to make sure those who need us most receive the service they deserve. At the moment, we aren’t undertaking assurance visits, however, we are keeping this under review in line with the Government guidance.

For our staff, their health and wellbeing is very important, we’re regularly updating our staff on advice provided by Government and Public Health England (PHE). We’ve displayed PHE posters in key areas to ensure our staff follow government advice. For those working in the office and as part of our plans to return more staff in the future, social distancing posters and one-way systems have been put in place in our offices to remind people and encourage them to maintain social distancing.

We have seen some areas of backlog during the processing of an application and have focused our overtime on clearing these backlogs and to try to maintain our target of 40 working days to process an application. During the past few months, we’ve seen a slight increase to 45 working days. We’ve also had a focus internally on staff wellbeing, creating specific sections on the intranet for staff to access information easily, we have regular all staff calls for updates and Q&A and wellbeing packs have been created with consideration for those who live alone for long weekends. Guidance has been created for OPG users for completing their roles during the COVID lockdown and is available on gov.uk

Q2. What impact do you think this will have on professional Deputies?

So far there is no impact on professional deputies in terms of the service we provide and usual workings. We are always striving to improve our systems to make reporting as easy as possible for deputies and to facilitate our supervision. Online reporting is now fully rolled out and we have received very positive feedback. We would encourage deputies to engage with us if there are areas in which they have suggestions for improvement.

In addition, we have just initiated a review of some of our supervision processes, we will be engaging our stakeholders throughout and will consider the impact on our users of any potential recommendations which this exercise generates. We operate in a culture of continuous improvement and welcome feedback at any time.

Q3. Have the OPG learnt anything so far from the pandemic?

Our main learnings during Covid-19 have been how we can adapt our current ways of working. We’ve enabled our contact centre staff to work from home, introduced new processes within our operations team allowing some areas of case work to be done from home and introduced an offsite printing and posting system for our mail.

We’ve seen an increased need in our digital services so we’ve shifted some focus to going digital as some of our processes are still very paper based. There’s been emphasis on Use an LPA, allowing donors and attorneys to share their LPA with banks and utility services by using an online code system which is currently in its private BETA phase. We’ve also learnt how important an LPA is to assist people in times such as this, and how important advance planning is so that people can act on your behalf when needed, which is why we created an entirely online version of our Your Voice Campaign. We’ve focused on raising awareness of LPAs within a new target audience, those from a BAME background, as they’ve been disproportionately affected by the virus. This campaign has been entirely focused online with the idea to increase uptake of lasting powers of attorney, or alternative to help them plan for the future.

Q4. Are the OPG still available by telephone?
Yes, our contact centre is still up and running. We have adapted to allow most of our staff to work from home with skeleton staff in the office. If you would like to speak to your dedicated case manager we would advise emailing the Professional Team and we will arrange for your case manager to call you.

Q5. What is the OPG’s priority at this time?

The OPG’s priority continues to be to fulfil its statutory functions. We continue to supervise and support deputies during this time.

Q6. Do the OPG have any feedback for professionals about the OPG105?

We would continue to encourage all professional deputies to provide as much detail as possible in their annual reports, including the cost sections. Where detailed information is provided, this significantly reduces the need for us to ask any further questions of you. The OPG appreciates that circumstances can change throughout the year, we would encourage you to keep us updated about these changes and any impact this may have on your costs by speaking to your case manager or by emailing opg.pro@publicguardian.gov.uk.

Q7. How have you been keeping busy during lockdown?

Workwise, I have been frantically working with my team on updating our online guidance to support people during this period and providing 24 hour turnaround policy advice to operational staff to help them deal with queries from the public.  A lot of the work has focused on managing the current situation, but I have also been progressing business as usual items as well in the margins, so that OPG can continue to move forward in its service delivery in the future.

Personally, I have a very active dog, who has got far too used to his personal assistant working from home, providing cuddles on demand, giving outdoor access whenever he likes and taking him to the park every day for a good run.  My cat, on the other hand, can’t wait for these human invaders to leave his house as they are interrupting his sleep schedule.  I have also discovered Netflix and Amazon Prime over this period.  I am an active and (not a very skilled) creative person, so there has also been a lot of drawing, sewing, writing and cookie decorating going on.  And, of course, reading my socks off.  I also have a major interest in diversity and inclusion, so have been educating myself on current events and how I can strive to be a better person coming out of lockdown than when I went in.

Q8. What are you most looking forward to after lockdown?

Honestly, I am quite a self-isolating, introverted person anyway – I really struggle with groups and people.  So, ironically, I can’t wait for all the shops, bars and gyms to reopen so that the people currently invading my sanctum of peace in the fields, woodlands and outdoor areas leave and return it to being a place where I don’t see anyone else on my walk.  Also, I make and decorate cookies as a hobby, and I have not been able to get the flour I need since lockdown started due to all the lockdown banana bread and sourdough baking  – so I’ll be grateful for the home baking to slow down so I am able to get the ingredients again for my hobby.  I will be grateful for the reduction of video conferences and screen time – sitting in a room and speaking to someone to have a break from the screen will be bliss for me – I feel like I’ve been surgically attached to my laptop.  Also, I’ve had some new staff start during this period, so meeting them in person will be nice, alongside catching up in person with everyone else – although not too many at a time, I’d find that overwhelming.

Overall, I think this has made me reflect on a lot of things and realised some of the privileges you take for granted – so I think I would like to say I am looking forward to being more grateful for the little things moving forward, which will hopefully make me a better human being.  I am not, however, looking forward to not having my dog as my co-worker everyday.

Clarion would like to thank Ria for taking part in Lockdown Lowdown and would like to thank the OPG for their tireless efforts in trying to improve this area of practice. Coming up in the series, we will be hearing from Lynsey Harrison from Clarion. If you would like to suggest another interviewee for Lockdown Lowdown, please contact Stephanie Kaye at stephanie.kaye@clarionsolicitors.com or call 0113 336 3402.

Can you recover costs for time spent communicating with in-house teams?

Often within a Deputyship, there is a necessity to instruct or obtain advice from specialists in other areas of law. Examples may include:

  • Where the Deputy is purchasing or selling a property on P’s behalf, which would warrant contact with the Conveyancing/Residential Property Team
  • Where P is assisted by directly employed carers, which may necessitate contact with the Employment Team, for example, in reviewing or amending contracts
  • Where a tax return is required, and the Deputy chooses to instruct the in-house Tax Team/Accountant to conduct a review of P’s finances, to prepare the tax return, and to advise on any liability
  • Where P is getting married, which may require input from the Family Team, for instance, in the drafting of a pre-nuptial agreement to ensure that P’s assets are protected

From the prospective of a Costs Draftsman, correspondence and meetings between the conducting fee earners in the Court of Protection Team and members of key in-house teams should be time recorded on the matter, and should be subsequently claimed when the Bill of Costs is prepared. This contact is essential in progressing P’s matter, and ultimately, if the in-house team had not been approached to provide input, then it is likely that an external provider would need to be instructed, with whom contact with would be allowed on assessment. Further to the recent decision in ACC & Others, Deputies should obtain three quotes for any work outside of their expertise before proceeding to instruct their in-house specialist, if it remains in P’s best interests to do so. You may also require further Court authority if the work is not covered by the Deputyship Order.

We recommend that all time is recorded for any contact and meetings with in-house teams, as this is largely recoverable upon assessment. For any telephone calls and meetings, it is beneficial to prepare a file note of the particular points discussed, to fully justify and warrant the contact. It’s also essential that it’s clear that those lawyers are from other specialisms, as if not, it may be viewed as any internal contact and could look like someone from the same team to the Costs Officer, which is more likely to be disallowed on assessment.

Ella Wilkinson is a Legal Apprentice in the Costs Department at Clarion Solicitors. You can contact her on 0113 288 5693 or by email to Ella.Wilkinson@clarionsolicitors.com