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

Can you recover your costs for time spent delegating in COP cases?

My talented colleague, Helen Spalding recently wrote a blog about the decision in  Fuseon Ltd, R. This costs claim arose from a private prosecution by Fuseon Ltd, a Lancashire based letting agency, against a Director of the business who had committed fraud and theft of over £100,000 relating to tenancy deposits, personal expenses and false invoices. You may be thinking, what does this have to do with Court of Protection costs?

In the decision, Master Gordon-Saker touched on inter-fee earner discussions and duplication. Detailed guidance was provided in respect of what is and is not recoverable in this regard in paragraphs 42 through 44. Master Gordon-Saker confirmed that reasonable time spent in inter-fee earner discussions is properly allowable. It is difficult to delegate tasks to junior fee earners without instructing them what to do and the reasonable time of the delegator and delegate is usually now considered to be recoverable.

Whilst this is not a COP case, this clearly shows that reasonable time spent delegating is not only expected, but should be recovered. So why does this not happen consistently in COP cases?

The Senior Courts Costs Office rely on the decision in Tina Jayne Cloughton (1999) and regularly note this on assessments to reduce or disallow time spent delegating, but it is unclear why a 21 year old decision is quoted, when we have new case law which clearly contradicts it.

There are many historic cases which are regularly referred to in COP assessments which are arguably outdated and no longer applicable. There is increasing frustration amongst professional deputies because COP work is still considered more routine than other areas of law, despite the significant responsibilities personally placed on deputies and the niche, complex and important issues which are dealt with every day. Delegation is particularly relevant to COP cases because most work is expected to be undertaken by Grade D and C fee earners, but how can that be achieved without some input, guidance and delegation from senior fee earners, who bear the responsibility and authority?

We hope that the message in the recent decision in Fuseon Ltd, R. will filter through to COP cases, and we will continue to recommend that reasonable time spent delegating complex work and communicating with colleagues is claimed within the bill of costs.

If you would like to know more, please contact stephanie.kaye@clarionsolicitors.com or call 0113 3363402.

 

 

 

 

Underspend, not good reason to depart from budget, unless phase substantially incomplete

The Costs Budget remains essential to costs recovery and monitoring continues to play an all-important role. The courts have previously ruled that an underspend of any phase constitutes a good reason to depart from the budget, however during a recent detailed assessment of costs in Utting v City College Norwich [2020] EWHC B20 (Costs) Master Brown adopted a different approach, agreeing with DJ Lumb in the case of Chapman v Norfolk & Norwich University Hospitals NHSFT [2020], as he commented:

“if an underspend were to be a good reason for departing from a budget it would be liable to substantially undermine the effectiveness of cost budgeting. As the Judge effectively observed, solicitors who had acted efficiently and kept costs within budget would find their costs subject to detailed assessment, whereas less efficient solicitors who exceeded the budget would, absent any other “good reason”, receive the budgeted sum and avoid detailed assessment.”

Consequently, the opportunity to secure a full recovery of budgeted costs (i.e. those estimated costs that have been incurred), is increased if the costs incurred fall within the budget.

Master Brown largely sided with DJ Lumb’s approach in the case of Chapman when he determined that underspending in a phase was not a good reason to depart from the budget. A budgeted phase coming up short is limited to the sum spent because of the indemnity principle, but that does not open it up to scrutiny more generally in the absence of further “good reason”.

Counsel for the Defendant in Utting submitted that if the amount of a phase does not match the budgeted sum then the costs of that phase are subject to detailed assessment including where there has been an underspend. The claim had settled some 20 days before trial following an unsuccessful joint settlement meeting. The bill claimed costs slightly lower than those budgeted but Master Brown deemed all phases to be complete, save for the Trial Preparation phase and Trial phase. For the phases regarded as complete he opined:

the fact that a party has spent less than its budget for a phase does not mean there is therefore in fact a good or appropriate reason for any further reduction and I was not satisfied that there was any additional “good reason” for any such reduction.

The Defendant was however given permission to argue “good reason” for departure in the Trial Preparation and Trial phases on the grounds that these phases had not substantially been completed and described this as:

“a clear and obvious distinction between an ‘underspend’ and the situation that arose in respect to the Trial and Trial Preparation phases where plainly there was, at the very least, substantial non-completion

This was the key difference to the approach taken by DJ Lumb in Chapman. The thrust of the ruling in Chapman seemed to be that once a budget was set, a party could spend a budgeted phase however it chose.

In Utting the Defendant sought to rely on the 2019 ruling in Barts Health NHS Trust v Salmon where not spending the totality of the budgeted figure for a particular phase, by virtue of the indemnity principle itself, did constitute “good reason”. The point of settlement of this case was pre-agreement of joint expert meeting agendas and before any JSM and so unsurprisingly the sums claimed in the Expert and ADR phases were less than the sum which had been budgeted for. Master Brown made reference to the fact he sat as an assessor in Barts Health NHS Trust v Salmon but justified taking a different tack in Utting on the basis that in Barts Health  “the assumptions upon which the budget had been prepared were not fulfilled”.

The approach taken in Barts health essentially incentivised a receiving party to overspend to avoid detailed assessment. DJ Lumb recognised this in Chapman and highlighted how it was problematic. Although Master Brown in Utting agreed with DJ Lumb as to the overall effect of the ruling in Barts Health, Master Brown went on to comment:

“There is however nothing per se unjust if a receiving party were to receive a sum by way of costs which is less than the budgeted sum. This is, of course, to be contrasted with the situation where a phase is not substantially completed, where it would, to my mind, be unjust for a receiving party to receive the full amount of a budgeted sum in circumstances where only a modest amount of the expected work had been done.”

As none of the cases referred to above are binding there remains an absence of clarity surrounding “good reason” to depart from a budget when the receiving party has underspent. The decision in Utting does however seem to have refined the approach in Chapman, causing Barts Health to appear to be more of an anomaly, further highlighting the importance of budgets and budget monitoring.

Anna Lockyer is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at anna.lockyer@clarionsolicitors.com and 0113 288 5619, or the Clarion Costs Team on 0113 246 0622

Part 36 Pointers

Matthew Rose gives an overview of key points for Part 36. Lockdown tip: remember Part 36 follows the rules of service, so make sure you get agreement to serve offers by email.

Matthew Rose is a Solicitor on the Costs team at Clarion Solicitors. Contact him at matthew.rose@clarionsolicitors.com or on 0113 222 3248.