Changes to the Deputy Standards 2023

Ellie Howard-TaylorLeave a comment

There has been an update to the existing Property & Finance and Health & Welfare Deputy Standards (‘Standards’), which will come into effect from mid-February 2023.

The single set of refreshed standards will apply to everyone who has been appointed as Deputy, including lay Deputies. Guidance tailored for professionals, public authorities and lay Deputies will also be published at the same time.

This is not the introduction of a new set of standards. The guiding principles of the refreshed standards remain the same and continue to be aligned with the Mental Capacity Act (MCA). The main changes are to make the standards more focused.

What has been changed?

The number of standards has been reduced from more than 40 to 8 core areas, which reflect the duties and responsibilities of all Deputies. Much of the material included in the original standards has now been re-shaped and included within the guidance documents.

The Office of the Public Guardian (OPG) has contacted all Deputies to notify them of the changes.

The refreshed standards can be found at published at https://www.gov.uk/guidance/opg-deputy-standards.

When the Court ordered a Judge-led mediation, and the approach taken to costs arising out of unresolved applications

Joanne ChaseLeave a comment

The matter of Dover Farm Developments Ltd v Smith [2025] EWHC 2862 (KB) (11 November 2025) related to a defamation claim where the parties made cross applications; the Claimant’s application was in respect of permission to amend their Particulars of Claim, and the Defendants’ application (who were husband and wife Litigants in Person) was to strike out the claim.

The applications were both listed to be heard remotely on 14 July 2025 and both applications were unsuccessful. The Defendants’ application was dismissed, and the Claimant’s application was refused due to their failure to provide a copy of the proposed amendments to the Particulars of Claim. The Court did, however, grant permission to restore the application to amend the Particulars of Claim, ordering directions for compliance, and also ordering that the matter be stayed until 28 July 2025 to enable the parties to engage in mediation via the Court. The mediation was successful save for the issue of costs relating to the hearing of 14 July 2025.

Costs Decision

Under the general rule contained in CPR 44.2 (2), each party was entitled to their costs of the other party’s application (on the basis both were unsuccessful). However, Master Fontaine relied upon the provision of CPR 44.2(2)(b), which states that the Court may make a different order, and he considered various factors which resulted in a decision whereby the Claimant was awarded their costs of dealing with the Defendants’ strike out application, with a 15% deduction. The deduction was to take into account various factors including: the fact the Claimant did not provide a copy of their proposed amended Particulars of Claim, even though they were professionally represented; and that the hearing of 14 July 2025 was not a wasted hearing because it urged the parties to consider the proposal of a mediation conducted by the Court, given it was unlikely the Defendants would attend a private mediation due to the level of costs involved.

This proposal by the Court led, ultimately, to a successful resolution of the matter. A further 5% deduction was applied on the basis the Claimant’s statement of costs did not separate out the costs associated with each application.

This case displays how the Court can exercise their powers in respect of ADR and also under CPR 44.4(2)(b). It particularly highlighted how it could be beneficial to Litigants in Person who would, otherwise, have been unable to participate in mediation due to the costs involved. However, it remains to be seen how frequently the Court will exercise such powers.

Can a Claimant claim interest on costs not yet paid?

Helen ApplebyLeave a comment

Município De Mariana v BHP Group (UK) Ltd & Anor [2026] EWHC 73 (TCC)

In this case, the Claimants had succeeded at trial on a preliminary issue and were awarded an interim payment on account of costs of £43 million. However, the assessment of costs was deferred until the conclusion of the overall case.

The Court had to determine whether interest could be awarded on costs, when those costs were not payable to the Solicitor until the successful conclusion of the claim.

The Defendants’ Position

The Defendants objected to the Claimants’ application for interest on costs. Their argument was that since the Claimants had not paid any legal fees or disbursements, and were not out of pocket at this stage.

The Legal Framework

CPR 44.2(6)(g) gives the court discretion to award interest on costs from or until a specific date, including a period before judgment. The rationale for awarding interest, as explained in Jones v Secretary of State for Energy and Climate Change [2014] EWCA Civ 363, is to compensate a party who has been deprived of the use of their money or has had to borrow to fund litigation.

The Judgment and Key Principles

Mrs Justice O’Farrell determined that, although the Claimants had not yet paid out costs, they had incurred a liability. If and when damages are paid, the Claimants will have to pay their Solicitor out of those damages. The fact that the Solicitors and funders had shouldered the risk of non-payment did not mean the Claimants were not ultimately liable.

The Judge determined that the Claimants should be compensated for the funding expenses incurred, which required payment from their damages. On this basis, the court exercised its discretion and awarded pre-judgment interest on costs at 1% above the base rate, calculated from the date when half the fees were incurred (1 August 2023).

Summary

The judgment confirms that even where payment is contingent on success, interest can be awarded on the liability incurred. This decision reflects the evolving realities of litigation funding and ensures that compensation for funding expenses is not arbitrarily withheld due to the timing or structure of payment.

Helen Appleby is an Associate in Clarion’s Costs and Litigation Funding Team and can be contacted at helen.appleby@clarionsolicitors.com or on 07774 045105.

No Costs Recovery in Failed Deputyship Case Where P Had Capacity

maidiedeightonLeave a comment

The Court of Protection has determined that it should not make a costs order against a Protected Party (P) who was the subject of a failed application by a professional Deputy to be appointed to handle his affairs.

This decision offers some important guidance on costs in Deputyship Applications, particularly when an application ultimately fails because the person concerned is found to have capacity.

Background

  • A professional Deputy applied to be appointed as property and affairs Deputy for a vulnerable adult. However, a section 49 report later confirmed that P did, in fact, have capacity.
  • P sustained frontal lobe damage more than 20 years ago following an assault, which has a mild impact on his executive functioning, compounded by excessive alcohol use. The Deputy made a COP1 application seeking appointment as a professional deputy for P after a referral by City of York Council, who believed P lacked capacity to manage his affairs. But a later medical report found he had the capacity to manage his property and affairs.
  • The Deputy appealed against the decision made by the District Judge who dismissed the application and made no order for costs, meaning the Deputy could not recover any of their expenses.

The Appeal

Harris J allowed the appeal in part, finding that the District Judge had misapplied the law on costs. Harris J found that the District Judge had made a mistake on costs by failing to apply the general rule that in property and affairs Deputyship applications costs shall be paid by P or charged to P’s estate (rule 19.2, Court of Protection Rules 2017) (SI 2017/1035)) (COP 2017). The District Judge had also failed to consider the grounds for departing from this with reference to the factors set out in rule 19.5 of the COP 2017.

Reassessing the Costs Position

  • Harris J reconsidered the matter from the start. While confirming that the general rule should be the initial benchmark, the Judge stressed that it is not absolute. There is a strong public interest in bringing appropriate applications before the Court of Protection, but that alone does not guarantee cost recovery for applicants.
  • Harris J concluded that as a matter of natural justice, “it may appear perverse that P should pay the costs of the Deputy – who is a complete stranger to him – for an application he did not invite, always opposed, had no choice but to respond to, and ultimately was successful in defending.

In reaching the decision, the judge focused on two key factors:

1.    P having no choice but to respond to litigation he did not invite but being successful in defending the application and, as a vulnerable adult, having no way to protect himself against any costs exposure.

2.    The professional Deputy choosing to bring and pursue the application and being in a position to assess litigation risks.

Outcome

  • Balancing these elements, the court concluded it was fair and just to depart from the general rule.
  • Harris J concluded that the application to be appointed as Deputy ultimately failed and it was the responsibility of the professional Deputy to mitigate any costs exposure.
  • Where an application has been made by a professional Deputy on referral from a local authority, the court suggested that the local authority could consider assuming the costs burden through a contractual arrangement with the Deputy, instead of imposing the burden on vulnerable adults.
  • This costs decision shows that courts are prepared to depart from the general rule on costs where there is good reason to do so.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

Report from the Committee of Public Accounts – Costs in Clinical Negligence

Bethany CollingsLeave a comment

The Committee of Public Accounts has published its latest report on the rising costs in clinical negligence – an important read for all those practising in this area. Notably, the report recommends that the Department for Health and Social Care clarify its position on a fixed recoverable costs scheme for lower-value clinical negligence cases at the earliest opportunity.

You can find the full report here.

Bethany Collings is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Costs in Trust Disputes: Key Insights from Seymour v Ragley Trust

Daniel MurrayLeave a comment

The High Court’s decision in William Francis Seymour v Ragley Trust Company Ltd & Ors [2025] EWHC 3400 (Ch) serves as a vital reminder of the difficulties faced by unsuccessful parties in displacing the general rule that the losing party pays the costs of the successful party. This case not only carries significant implications for family-estate and trust law but also reinforces the stringent requirements for overturning the usual costs order, i.e. the unsuccessful party pay the costs of the successful party,  particularly in the context of beneficiary disputes.

Background

In this case, the Claimant, who is the Earl of Yarmouth,  sought the removal of the existing trustees of the Ragley family trusts, aiming to replace them with independent professional trustees. After his claim was dismissed, the Claimant sought to displace the standard costs rule, arguing that he had experienced partial success and that the conduct of the Defendants warranted a different outcome under CPR 44.2(2)(a).

The Claimant contended that the costs of all of the parties should be paid out of the trust assets, alternatively that an order should be made for a payment of only a proportion of the Defendants’ costs, of no more than 50%.

The Categorisation of Trust Litigation and Costs

At the outset of his judgment, Master Brightwell provided a useful summary of the key principles governing costs in trust disputes, drawing on the Court of Appeal’s decision in Price v Saundry [2019] EWCA Civ 2261 and the longstanding authority of Re Buckton [1907] 2 Ch 406. These principles divide trust litigation into three main categories:

  1. Trustee Applications for Court Guidance
    • Trustees seek judicial assistance on matters such as trust interpretation or administration.
    • The costs of all parties are typically paid from the trust fund, as the estate is the primary beneficiary.
  2. Non-Trustee Applications
    • An outsider (e.g. a beneficiary or other interested party) seeks guidance that could have been requested by the trustees.
    • Costs are treated in the same way as trustee applications, with payments typically made from the trust fund.
  3. Beneficiary Disputes
    • A beneficiary makes a hostile claim against trustees or other beneficiaries.
    • This is treated like common law litigation, with costs generally following the event.

It was not seriously disputed that this case fell into the third category: a beneficiary dispute. The Claimant had brought a “root and branch” attack on the trustees’ conduct, which was clearly hostile in nature.

The Claimant’s Attempts to Displace the usual Costs Rule

Partial Success

The Claimant’s argument regarding partial success was based on the fact that he had succeeded in achieving a change in the composition of the directors of the trust companies. However, this argument was swiftly dismissed by the Court. Master Brightwell referenced earlier correspondence from the Claimant’s solicitors, which indicated that the appointment of a fourth director did not have any significant value or impact on the administration of the trust. As such, the partial success argument did not carry any weight. The application of an issue based order was dismissed, on the grounds that the Court must also be able to identify, at least in broad brush or in general terms, a part or proportion of the costs of the unsuccessful party which were incurred because of the unreasonable conduct which is complained about.

Conduct of the Parties

The Claimant also sought to challenge the Defendants’ conduct during the litigation. Specifically, he argued that the trustees had acted unreasonably by vigorously defending the allegations made against them, despite suggestions that they were open to stepping down or being removed from their positions. He also pointed to the fact that the trustees did not personally attend a settlement meeting, implying a lack of engagement.

However, the Court rejected these submissions. Master Brightwell noted that in beneficiary disputes, where allegations of misconduct are dismissed, the general costs rule is the starting point. Had the allegations been substantiated, the situation would have been different. There would have been strong arguments in favour of the trustees losing their indemnity from the trust assets and possibly being required to pay the Claimant’s costs. However, as the allegations were not proven, the trustees were entitled to defend themselves fully, and no misconduct was found.

Quantum and the Claimant’s Procedural Challenges

In addition to the issues of partial success and conduct, the Claimant raised concerns about the quantum of costs. Specifically, he questioned the fairness of the costs given that the claim had been brought under the Part 8 procedure, which did not involve the cross-examination of witnesses. The Judge noted that these concerns were a matter for detailed assessment rather than something that should automatically reduce the costs. Consequently, the Claimant was ordered to pay the Defendants’ costs on the standard basis, to be assessed if not agreed.

Indemnity from Trust Assets

The judgment also addressed the issue of indemnity for the trustees. Master Brightwell confirmed that, to the extent the costs were not recovered from the Claimant (whether due to an assessment down or non-recovery), the trustees were entitled to an indemnity from the trust assets. This was to be given effect by the trustees having their costs assessed on the indemnity basis, ensuring that they could recover their legal fees from the trust fund.

Key Takeaways for Trust Litigation and Costs

  1. Costs in Beneficiary Disputes: In beneficiary disputes, the general rule is that costs will follow the event. Even if a Claimant achieves some minor or peripheral benefit from the litigation, unless that translates into substantive relief, they are likely to bear the costs of the successful parties.
  2. No Leniency for Conduct: A party’s conduct during proceedings will rarely alter the costs order unless there is clear misconduct. Trustees defending claims against them are entitled to act robustly without the risk of bearing the costs, provided their actions are not unreasonable.
  3. Indemnity for Trustees: Trustees who successfully defend claims will usually be indemnified from the trust fund for their costs, provided they act in good faith. This indemnity ensures that trustees are not financially burdened by their legal fees when defending their position in the trust.
  4. Cost Assessments: Even if a Claimant challenges the quantum of costs, this will be dealt with at the assessment stage, not as a reduction in costs as a matter of principle.
  5. Issue Based Costs Orders: Parties seeking issue based costs orders, must be prepared to substantiate their arguments, so the Court can make an informed decision.

The case highlights the importance of understanding the nuanced rules surrounding costs in trust litigation, especially for beneficiaries considering challenging trustees. The default position remains clear: losing a claim means paying the costs, and partial success or the conduct of the parties is unlikely to alter that outcome unless specific conditions are met.

Daniel Murray is a Senior Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Warning that future non-compliance with the requirements set out in the Criminal Procedure Rules may result in the Court simply declining to make a costs order

Ellena HunterLeave a comment

Background

In Taktouk v The King [2025] EWCA Crim 1473, the Court of Appeal (Criminal Division) delivered an important judgment on the recovery of costs by private prosecutors from central funds following a confiscation appeal. Although the underlying confiscation appeal had succeeded earlier in 2025, this decision concerned how, when, and to what extent private prosecutors may recover their costs under section 17 of the Prosecution of Offences Act 1985 (‘POA 1985’).

The proceedings arose out of a private prosecution for fraud. Following conviction, confiscation proceedings were pursued, resulting in a confiscation order. On 5 February 2025, the Court of Appeal allowed an appeal against the confiscation order on the basis of fresh evidence that may have undermined the trial court’s assessment of the available amount. The private prosecutors applied for an order that their costs of resisting the confiscation appeal, amounting to almost £200,000, be paid out of central funds under section 17(1) POA 1985.

Application for costs out of central funds

The private prosecutors’ application made no reference to any attempts made to ensure that the case was prosecuted by an appropriate state prosecutor. Furthermore, no information was given regarding how the private prosecutors were selected to conduct the prosecution, or whether there was any tendering process involving either them or counsel. The Memorandum of Costs lodged in support of the application merely provided a breakdown of the total profit costs, Counsel’s fees, and disbursements.

Upon receipt of the application, the Court gave directions giving the Lord Chancellor leave to intervene and to lodge written submissions. This resulted in further information about the costs incurred being provided by the private prosecutors, by way of a witness statement. The private prosecutors provided details of how they came to be instructed, they confirmed that there was no tendering process and stated that the chance of the CPS agreeing to prosecute was very slim. It was further confirmed that the CPS and police were not provided with the results of the private prosecutors’ investigation until after the appellant succeeded in his appeal.

Therefore, the key points to be determined were the consequences of:

  • The private prosecutors’ failure to supply the information required by rule 45.4 of the Criminal Procedure Rules;
  • The failure to attempt to involve the police and state prosecuting authorities in bringing the case; and
  • The failure to engage in a tendering process for solicitors and counsel.

The Court noted that it was open to them to decline to make any costs order under section 17 because of the serious failure in presenting the claim. However, it instead ordered that the private prosecutors be allowed only 50% of the costs which the costs officer determined as reasonably sufficient. This reduction was to reflect:

  • The failure to lodge an adequate claim for costs in compliance with CrimPR 45.4(6)(c), and to state the law accurately in it. The specific failures being:
  • The failure to communicate with the state prosecuting authorities either at the point when the prosecution begun in 2018 or at the point when confiscation proceedings were begun following conviction with a view to them conducting the proceedings.
  • The failure to test the market at either of the points identified at (a) above to establish the lowest amount which the prosecutor could reasonably have been expected to spend in order to have its case conducted and presented proficiently, having regard to all the relevant circumstances.
  • The failure to disclose intelligence reports until the appeal proceedings were in progress.
  • The failure to communicate with the state prosecuting authorities either at the point when the prosecution was begun in 2018 or at the point when confiscation proceedings were begun following conviction with a view to them conducting the proceedings.
  • The failure to test the market at the point when confiscation proceedings were begun to establish the lowest amount which the prosecutor could reasonably have been expected to spend in order to have its case conducted and presented proficiently, having regard to all the relevant circumstances.

Whilst the Court did not exercise its discretion to disallow the private prosecutors costs, it did warn that the judgment in the present case and in BDI should serve as an explanation to how the Courts would approach the issue and future-non compliance with the requirements set out in the Criminal Procedure Rules may well result in the Court simply declining to make any order.

Ellena Hunter is an Associate in Clarion’s Costs and Litigation Funding Team and can be contacted on 07979 199145 or Ellena.hunter@clarionsolicitors.com

Does a paying party have to pay VAT on costs if an insurer is no longer trading?

ujjainimistryLeave a comment

The case of Shmuel Moller & Ors v One Touch Solution Limited & Anor [2026] was a routine summary assessment of costs arising from an interlocutory hearing where the Court was required to undertake a focused examination of VAT recoverability where the receiving party was in liquidation.

Background information

The proceedings arose out of a commercial claim brought by the Claimants against One Touch Solution Limited and its insurer, Hiscox Insurance Company Limited. During the litigation, the Claimants were granted permission to amend their statement of case.

The Court ordered that the Claimants should pay the Defendants’ reasonable costs of responding to the amendment, including the costs of preparing an amended defence, such costs to be assessed if not agreed.

By the time the costs issue arose, One Touch Solution Limited had entered creditors’ voluntary liquidation. This gave rise to a dispute as to whether VAT on the Defendants’ legal costs was recoverable as part of the costs order. The Claimants argued that VAT should not be included because it was recoverable by the Defendant (or its estate). The Defendants contended that liquidation meant VAT was irrecoverable and therefore payable by the Claimants.

The Court was therefore required to determine, in the context of a costs assessment, whether VAT on the relevant legal services was recoverable where the receiving party was a company in liquidation, and whether any additional costs should be awarded in relation to the VAT dispute itself.

The Parties’ arguments

The Claimants argued that VAT was only recoverable if the receiving party cannot recover it as input tax from HMRC and that the First Defendant had been VAT-registered at the relevant time legal services were supplied. They also argued that the liquidation did not change the VAT position; insolvency and VAT deregistration on liquidation does not automatically render VAT irrecoverable.

Furthermore, they argued that in respect of the First Defendant’s costs that were funded by the insurer, the insurer was not the entity that incurred the legal services and had no independent right to recover VAT as costs.

The Defendants argued that VAT was irrecoverable and therefore recoverable from the Claimants as part of the costs order. They stated that the liquidation rendered VAT irrecoverable and that VAT could not be recovered in an ordinary way.

Conclusion

The Court held that the First Defendant’s liquidators can recover VAT by filing appropriate VAT returns, meaning neither Defendant has suffered a recoverable loss for VAT in their costs. The Court’s decision was based on the wording of the Regulation 111(5) of the Value Added Tax Regulations 1995. The wording clearly supported the Claimant’s position, and it was held that the Defendants’ position flew in the face of the regulation and was unexplained.

The Claimants sought £1,000 (excluding VAT) for the costs of preparing submissions on the VAT issue. The court noted that the issue had been fully argued in correspondence, the Claimants succeeded on the point, and the Defendants could have avoided further costs by addressing it clearly at the earlier hearing.

Although the Court did not hear submissions from the Defendants on these costs, it found that the Claimants were clearly successful, that the usual CPR Part 44 costs principles applied, and that the amount claimed was reasonable and proportionate.

Accordingly, the Court ordered the Defendants to pay the Claimants’ costs of £1,000, subject to the Defendants’ right to apply in writing to set aside or vary the order, with any such application to be determined on the papers and with modest further costs expected.

Key Takeaways

Although the decision in Moller is not groundbreaking, it is a timely reminder that insolvency does not simplify VAT issues—it often complicates them. VAT recoverability turns on tax entitlement, not litigation status and insurers cannot assume VAT will be recoverable from the opposing party.

VAT on costs remains a technical issue requiring proper analysis. Treating it as an afterthought can prove an expensive mistake.

The Court rejected the common assumption that where a company is in liquidation, VAT on its legal costs must be irrecoverable and therefore payable by the opponent as part of a costs order.

Therefore, the key principle remains unchanged: VAT is only recoverable as part of costs if the receiving party cannot recover it as input tax. Liquidation or VAT deregistration does not, without more, make VAT irrecoverable.

Ujjaini Mistry is a Paralegal in the Civil and Commercial Costs Team at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com.

Re ACC and Others: Guidance from the OPG

Laura SugarmanLeave a comment

On 9 January 2026, the Office of the Public Guardian published new guidance on Re ACC & Others, setting out their position on this judgement. This guidance explains how Deputies should apply the Re ACC and Others judgment from the Court of Protection and what actions the Office of the Public Guardian expects Deputies to take to remain compliant.

 

For background, this judgement sets out positions on issues concerning the authorities a professional Deputy will need to obtain legal services and how to manage any conflicts of interests.

 

The judgement sets out the position on the general authority of a Deputy. This is defined as the common or day to day tasks that are required to be undertaken to administer P’s estate effectively. Deputies have legal authority to act on behalf of someone who lacks capacity, but that authority is defined strictly by the court order that appointed them. The Re ACC judgment clarified what Deputies can and can’t do without asking the court for extra permission. The guidance explains how Deputies should act within those rules and manage legal work or potential conflicts of interest.

 

 

Deputies automatically have general authority to carry out everyday financial tasks if the court order includes those powers. That generally covers things like:

 

  • Managing bank accounts and investments
  • Letting or maintaining property
  • Preparing tax returns
  • Ensuring care costs are paid

 

 

However, this only applies as long as the activity is within the scope of authority granted by the court order. Deputies acting outside their authority do so at personal risk. Tasks which fall out of the general authority as outlined in the Deputyship Order template include:

 

  • Purchase of freehold or leasehold property
  • Sell, lease or charge freehold or leasehold property
  • Appoint an investment manager
  • Use P’s funds to provide for others
  • Make gifts to charity
  • Obtain a grant of representation
  • Execute or sign deeds or documents

 

It is important to note that unless specific authority is granted in the Deputyship Order, a property and affairs Deputy does not have authority to perform any of the above tasks. If a task isn’t expressly allowed by the Court Order, you must apply to the court for specific authorisation.

 

Litigation

 

Deputies cannot initiate litigation on behalf of P without specific authorisation from the Court of Protection. If a Deputy has specific authorisation to carry out certain tasks, they have authority to engage up to the point of receiving the Letter of Response, but no further.

 

If the contentious litigation may relate to personal welfare decisions, a Deputy cannot initiate litigation but can seek directions from the Court of Protection. Further, the general authority in a property and affairs Deputyship Order does not include appealing against a decision in an Education, Health and Care Plan. This is because this is a personal welfare issue.

 

Whereby urgent litigation is required, the Deputy may proceed at risk but should seek retrospective authorisation. However, this is not guaranteed to be given.

 

Conflicts of Interest

 

This guidance confirms the position on conflicts of interest should a Deputy wish to instruct a member of their own firm. To do so, prior authorisation from the Court must be obtained to carry out this work. If specific authority has not been granted, a Deputy should obtain three competitive quotes from suitable providers and choose the provider that best meets the person’s interests.

 

If these costs are expected to exceed £2,000 plus VAT, authority from the Court is required.

 

Position of the Office of the Public Guardian

 

The Office of the Public Guardian has a statutory duty to supervise all court appointed Deputies. They expect all Deputies to clearly demonstrate they have authority to undertake the work, show how conflicts of interest have been managed and include relevant decisions with respect to Re ACC in the annual Deputyship report. If a Deputy wishes to instruct a member of their own team, they must apply to the court for authorisation whereby projected costs are likely to exceed £2,000 plus VAT.

 

If a case has completed prior to the release of this judgement, the Office of the Public Guardian does not expect applications for retrospective authority to be necessary. However, the Office of the Public Guardian takes the stance that the conflict of interest set out in Re ACC extends to any instance whereby the Deputy is considering utilising services for P from their own firm and this constitutes a potential conflict of interest.

 

In Summary

 

This new guidance reinforces the importance of staying within the authority granted by the court, seeking specific court authorisation for litigation or other high value actions, managing conflicts of interest transparently and reporting properly to the Office of the Public Guardian about decisions made on behalf of P.

 

If you have any questions or would like further information about any of the above, please contact Laura Sugarman on laura.sugarman@clarionsolicitors.com

 

 

 

 

 

The Government’s measures to clarify the uncertainties surrounding LFAs following the 2023 PACCAR ruling

angelanakoLeave a comment

The Minister of State for Justice, Sarah Sackman KC MP, announced that the government will take action to limit uncertainties surrounding third-party litigation funding agreements (LFAs) following the 2023 Supreme Court ruling in PACCAR. The government will also implement proportionate regulation of LFAs, in line with the Civil Justice Council’s (CJC) recommendations.

Further background information regarding the ruling in PACCAR can be found in Anna Lockyer’s blog post here.

The Government’s next steps

The Supreme Court Judgment in PACCAR created uncertainty around the validity and enforceability of LFAs. The government has now announced that legislation will be introduced to clarify that LFAs are not damages based agreements. They have said this will be implemented with “prospective effect” (the CJC recommendation was for prospective and retrospective effect). In doing so the government hopes this will reassure funders that LFAs can continue to be used to fund cases, the government recognising that LFAs can enable individuals to bring complex claims against better-resourced organisations and that the uncertainty post-PACCAR might be preventing claimants from pursuing claims.

In addition, proportionate regulation of LFAs will be introduced, to improve transparency and fairness for claimants. Legislation will be introduced when “parliamentary time allows”. Once these two changes have been implemented, the Civil Justice Council’s wider litigation funding recommendations will be considered, and further changes will be announced.

Conclusion

When it came into office the new government made clear it would wait for the CJC report before taking decisions on any legislation concerning litigation funding. While we must still wait to see the government’s proposed timetable and the text of draft legislation, the government has said its priority is to remove the uncertainty introduced by PACCAR and ensure the litigation funding sector works fairly and efficiently for all.

Angela Nako is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com