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.

Gifting – OPG updates gift giving guidance

hawamayetLeave a comment

The Office of the Public Guardian (OPG) has issued updated guidance on gift giving, with particular emphasis on loans and circumstances in which Deputies or Attorneys may seek to benefit themselves.

The guidance makes clear that a conflict of interest is likely to arise where an Attorney makes a gift or loan to themselves, or to members of their family, from the donor’s assets.

Further emphasis had been made relation to loans and the position is unequivocal: Attorneys should seek prior authority from the Court of Protection before making any loan to themselves or to their family.

A general authority contained within a Deputyship Order does not extend to the power to make loans. Deputies must not enter such arrangements unless they have obtained specific authority from the Court of Protection.

In respect of gifts, the OPG cautions: “If you do accept a gift for yourself, the Court of Protection can look carefully at whether the [donor] had capacity and may decide you went beyond your authority.”

The guidance further stresses that where a proposed gift does not fall within the statutory exceptions, an application must be made to the Court of Protection for approval.

 

For a refresher of the OPG gifting guidance, please see below.

Before making a decision regarding a gift to be made, 2 key points must be considered by the Deputy:

  1. Does P have capacity to make this decision themselves?
  2. If they lack capacity, is the decision in their best interests?

Best interests entails consideration of:

  • P’s past and present wishes
  • Their beliefs and values
  • Their relationships
  • Their financial security

 

What legally counts as a “Gift”?

  • Cash transfers
  • Cheques
  • Bank transfers
  • Selling property at an undervalue
  • Transferring shares
  • Forgiving a debt
  • Interest-free loans
  • Paying school fees or other costs for someone else
  • Adding someone to a property title
  • Setting up trusts for others
  • If full market value is not received in return, the transaction will usually be treated as a gift.

 

When gifts can be made without Court approval

Three conditions must be satisfied:

1: The gift is on a customary occasion

“Customary” refers to occasions that are culturally or socially normal in the context of the person’s life.

Examples include:

  • Birthdays
  • Christmas, Eid, Diwali, Hanukkah
  • Weddings or civil partnerships
  • Anniversaries
  • New births

 

2: The recipient is connected

The gift must be made to:

  • A family member
  • A friend or other person connected to them
  • A charity they have supported or might reasonably have been expected to support

 

3: The gift is reasonable in value

What is “reasonable” will depend on:

  • The size of the estate
  • P’s anticipated future care costs
  • Life expectancy
  • Income against expenditure
  • Existing financial commitments
  • Previous gifting patterns

 

The de minimis exceptions

The Court of Protection recognises that, in limited circumstances, a gift may technically exceed a Deputy’s authority but only to a minor extent such that a formal application is not required. These are referred to as ‘de minimis exceptions’ and apply only where P’s estate has a value of £325,000 or more.

When determining whether a gift falls within the de minimis exception, the Deputy must consider:

  • P’s life expectancy
  • The affordability of the proposed gift
  • Whether the proposed gift would affect P’s care costs, standard of care or quality of life
  • Whether there is any evidence that P would object to the gift being made on their behalf

The de minimis exception does not apply in the following circumstances, and an application to the Court of Protection will still be required:

  • Loans to the Deputy or members of their family
  • Investments in the Deputy’s business
  • Sales or purchases at an undervalue
  • Transactions giving rise to a conflict of interest between P and the Deputy

 

What Deputies cannot do without Court approval

An application must be made to the Court of Protection where a Deputy proposes to:

  • Make substantial gifts outside normal customary occasions
  • Undertake inheritance tax mitigation through significant lifetime gifting
  • Transfer property to family members
  • Create trusts
  • Use P’s funds to maintain someone other than P
  • Make loans
  • Alter property ownership structures
  • Equalise inheritance between children
  • Continue a historic pattern of high-value gifting

 

For the full guidance please click on the link Giving gifts – GOV.UK

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

 

Can a Trust Corporation be appointed as a Deputy?

Tanya ForanLeave a comment

In the Matter of AB [2026] EWCOP 11 (T2) (5 February 2026) Her Honour Judge Hilder considered various factors when deciding if a Trust Corporation could be appointed as a deputy.

Key Facts

 The matter concerned an incapacitated adult (“AB”) and issues relating to the appointment and responsibilities of a deputy. In this case, a trust corporation made an application to be appointed as AB’s deputy. The trust corporation, whilst not directly regulated, had employees with day-to-day management of the matter, who were regulated by the SRA.

In this case, the Court was required to address practice and procedure in the context of deputies who have been appointed to manage the finances and property of someone who lacks capacity under the Mental Capacity Act 2005.

A major practical issue in this case was whether the trust corporation deputy was covered by appropriate professional indemnity insurance. This is an important protection for both the deputy and AB in the event of any claims that may arise from deputyship decisions.

The judgment illustrates how the Court of Protection will scrutinise the credentials and safeguards associated with professional deputies, especially when the deputyship is not a family member or layperson. In this matter, the application was for the appointment of a trust corporation as opposed to an individual and whilst the day to day file handler was a solicitor, the trust was not a law firm and was not therefore regulated by the SRA.

Previous Case Law

In the judgement from Various Incapacitated Persons and the Appointment of Trust Corporations as Deputies [2018] EWCOP 3, it was provided that two types of trust corporation were acceptable either where the trust corporation is itself authorised by the SRA OR where;

a. all the directors of the trust corporation are solicitors and it employs no one (save to the extent that it employs a company secretary); and

b. the trust corporation will retain its associated legal practice to carry out all practical work in relation to the management of the incapacitated person’s property and affairs; and

c. the trust corporation is covered by the professional indemnity insurance policy of its associated authorised legal practice on the same terms as that practice

AND that the trust corporation will inform the Public Guardian immediately if any of these things change

with the following undertakings:

1. The proposed deputy (the trust corporation) is a trust corporation within the meaning of section 64(1) of the Mental Capacity Act 2005 and can lawfully act as such; and the trust corporation will inform the Public Guardian immediately if that ceases to be the case.

2. The trust corporation will comply with the Public Guardian’s published standards for professional deputies.

3. EITHER

(i)        The trust corporation is authorised by the SRA; OR

(ii)      all the directors of the trust corporation are solicitors, and it employs no one (save to the extent that it employs a company secretary); and

(iii)       the trust corporation will retain its associated legal practice to carry out all practical work in relation to the management of the incapacitated person’s property and affairs; and

(iv)       the trust corporation is covered by the professional indemnity insurance policy of its associated authorised legal practice on the same terms as that practice.

4. The trust corporation will notify the Public Guardian immediately if there is any change to any of the matters set out in paragraph 3 above.

5. The trust corporation undertakes that it (or where relevant its associated authorised legal practice) will maintain insurance cover that:

(i)       covers the work of the trust corporation and

(ii)      is compliant with SRA Minimum Terms and Conditions.

6. The trust corporation will lodge a copy of the insurance policy referred to in paragraph 5 above with the Public Guardian on appointment and will inform the Public Guardian immediately if there is any reduction in the terms or level of the insurance cover.

AB [2026]

In the initial application Enable & Thrive Ltd was unable to comply with undertakings from previous case law, there were failures to notify family members of the application and when family members were notified, they objected to the application. There was also a lack of detail provided to the court in relation to AB’s circumstances.

It was necessary for the court to look at whether other safeguards existed and the court found that the applicant had;

  • A solicitor director regulated by the SRA.
  • Professional indemnity insurance.
  • Staff training.
  • Safeguarding procedures.
  • Annual reporting to the OPG.
  • Requirements for a security bond.

Conclusion

In this matter the third undertaking from Various Incapacitated Persons and the Appointment of Trust Corporations as Deputies [2018] EWCOP 3 could not be satisfied as the trust corporation was not regulated by the SRA and to compensate for this the following was to be complied with:

  1. The corporation confirms it is a Category 3 trust corporation, and names the solicitor‑director(s) regulated by the SRA.
  2. Only the named solicitor‑director(s) may be listed on any client account.
  3. It must notify the Public Guardian of any change to these matters.
  4. It must still comply with the undertakings on insurance found in The First Judgment.

Whilst this could be complied with, a hearing took place and all parties agreed that the trust corporation be discharged and a panel deputy should be appointed in its place.

Legal Significance

The case underscores that corporate deputies must demonstrate appropriate insurance and oversight mechanisms before being appointed or continuing in the role.

It also highlights practical Court of Protection concerns about the capacity of professional deputies to manage complex financial affairs and ensure protection of vulnerable persons’ interests.

It was accepted that the risks to AB included the potential misappropriation of funds, financial mismanagement and a lack of accountability. Her Honour Judge Hilder also noted that “membership of professional associations is not the same as regulation.”

If you have any questions on the information above or have any general queries with regard to seeking costs, please contact me at Tanya.Foran@clarionsolicitors.com

Understanding the Role of Each Grade Fee Earner in Court of Protection: A Breakdown of Responsibilities

Leah MorrisLeave a comment

Navigating the complexities of Court of Protection requires a clear understanding of the roles and responsibilities of the various fee earners involved in the process. From apprentices and paralegals through to senior partners, each grade of fee earner plays a vital part in managing and overseeing costs, ensuring that both legal obligations and client needs are met efficiently. In this blog, we will explore the specific tasks and duties that correspond to each grade of fee earner, offering insight into how their work contributes to the overall success of Court of Protection cases and the accurate management of associated costs.

Grade D

Grade D fee earners refer to trainee solicitors, paralegals, and other fee earners, such as administrative assistants. These fee earners are not qualified lawyers.

Tasks commonly undertaken by Grade D fee earners include the following:

  • Arranging payments
  • Reviewing invoices
  • Considering incoming correspondence
  • Liaising with the DWP in relation to benefits
  • Preparing standard forms, such as banking forms
  • Amending standing orders
  • Considering bank statements
  • Attending the property for insurance visits.

These tasks are undertaken by Grade D fee earners to assist with the Protected Party’s daily life. Grade D fee earners will often be delegated tasks by more senior fee earners or seek instructions to reduce the costs incurred to the Protected Party. The tasks carried out usually require minimal specialist knowledge and consist of simpler duties to enable the day-to-day management of the case.

Grade C

Grade C fee earners consist of solicitors or legal executives and fee earners of equivalent experience. These fee earners are usually qualified, however, senior paralegals can also be categorised as Grade C based on extensive Court of Protection experience.

Tasks commonly undertaken by Grade C fee earners include the following:

  • Preparing the annual Deputyship report
  • Preparing benefits forms
  • Considering the insurance position
  • Reviewing care plans
  • Drafting COP forms

Grade C fee earners usually have regular day-to-day conduct of the file and will complete tasks to reduce the costs incurred to the Protected Party. However, these tasks may be slightly more complex and require further specialist knowledge than unqualified persons (Grade D) to enable completion. In practice, Grade C fee earners are often the backbone of the day-to-day management of the case. They ensure that routine matters such as reporting, correspondence, and documentation are handled effectively while providing intermediate-level legal support. Their ability to balance both practical and legal considerations helps keep costs manageable while still meeting legal standards.

Grade B

Grade B fee earners include solicitors and legal executives who have been qualified for a minimum of four years.

Tasks commonly undertaken by Grade B fee earners include the following:

  • Liaising with P and their family as the main point of contact
  • Preparing budgets
  • Preparing Witness Statements
  • Liaising with the care home regarding P
  • Making simpler best interests decisions

Claiming Grade B in cases is challenging due to the complexity of tasks to be undertaken, requiring extensive legal knowledge that would necessitate a more senior fee earner than Grade D or C. However, the tasks are not quite complex enough to warrant the expertise of a Grade A fee earner, such as the Deputy. As there is no exhaustive list of specific tasks, it can be difficult to justify why a Grade B fee earner was required to conduct the work in the place of a lower grade fee earner. Grade B fee earners take on a supervisory role in cases, often overseeing the more detailed aspects of the case while ensuring compliance with Court of Protection requirements. Their work bridges the gap between the more routine tasks carried out by Grade C or D fee earners and the high-level strategic oversight of a Grade A fee earner.

Grade A

Grade A fee earners consist of solicitors and legal executives who have been qualified for over 8 years.

Tasks commonly undertaken by Grade A fee earners include the following:

  • Certifying and signing documents
  • Approving payments
  • Making complex and costly best interests decisions
  • Delegating tasks
  • Attending on P for the annual Deputy visit
  • Attending on the IFA
  • Reviewing investment and portfolio reports

Grade A fee earners have minimal overall day-to-day navigation of the matter due to the higher hourly rate charged and therefore the additional costs that would be incurred to the Protected Party. This is because they are focused on providing specialised expertise or high-level legal advice rather than managing the day-to-day administrative tasks and procedural aspects of a case. Their role is usually more strategic, handling complex legal issues and ensuring that the case aligns with broader legal principles. In practice, Grade A fee earners are responsible for making decisions with long-term implications, including the management of assets, complex best interests decisions, and compliance with legal requirements. As a result, the administrative tasks, client communication and file management responsibilities often fall to more junior staff, such as Grade C fee earners or paralegals, who are responsible for maintaining the case on a practical level. This division allows Grade A fee earners to focus on their area of expertise while delegating routine tasks to those with less specialised experience.

In conclusion, understanding the specific responsibilities of each grade fee earner in Court of Protection cases is essential for both managing costs effectively and ensuring the protection and care of vulnerable individuals. From the foundational tasks handled by junior fee earners to the more complex responsibilities undertaken by senior professionals, each role plays a vital part in maintaining the smooth operation of the case. By clearly outlining the tasks and responsibilities across different grades, legal teams can work more efficiently, ensuring that every aspect of the case is addressed with the appropriate level of expertise. This collaborative approach helps to balance both legal and financial obligations, ultimately benefiting the clients who rely on the Court of Protection system for support and guidance.

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

From Millions to Nil: The Stark Warning in Winros v Global Energy

ujjainimistryLeave a comment

In a judgment handed down on 19 December 2025 in the case of The Winros Partnership v Global Energy Horizons Corporation [2025] EWHC 3362 (Ch) (19 December 2025), Mr Justice Marcus Smith upheld a decision of the Senior Costs Judge Gordon-Saker in an assessment under the Solicitors Act 1974 to assess bills totalling circa £6 million at nil. The decision focusses on the circumstances in which a solicitor can terminate a CFA and preserve the right to claim fees from a client.

 

Background

The dispute arose from a long-running dispute between The Winros Partnership (formerly Rosenblatt Solicitors) and their former client, Global Energy Horizons Corporation. Winros had acted for Global Energy under a series of CFAs, which typically provided that the solicitor was only paid only in the event case succeeded.

However, the relationship deteriorated before any success was achieved under the last CFA. Winros terminated the retainer by accepting Global Energy’s repudiatory breach rather than relying on an express termination clause in the CFA.

After the retainer was terminated, Winros delivered a bill for circa £6 million, arguing it should be paid for the work they had done up to the point of termination. Winros also issued a claim in the Chancery Division for damages in relation to the termination of the CFA. Global Energy subsequently asked the court to assess the bill under Section 70 of the Solicitors Act 1974and the claim in the Chancery division was stayed pending the outcome of the assessment.

What the High Court Decided

On appeal from the Senior Costs Judge’s decision in the Senior Courts Costs Office, Mr Justice Marcus Smith upheld the assessment that Winros was not entitled to any payment and that the bill was to be assessed at nil.

Winros chose to terminate the CFA by accepting Global Energy’s repudiatory breach rather than invoking the contractual mechanism in clause 14 (which would have entitled it to fees for work done). Choosing a common law termination meant the contractual protections for payment on termination did not apply.

Furthermore, Winros argued they should have been paid on a quantum meruit basis, which is a restitutionary claim for the value of work done. However, the Court agreed with the lower court that as the CFA had already clearly set out the consequences of early termination, there was no “total failure of basis” that would justify unjust enrichment. Simply put, the contract already articulated what was to happen, leaving no gap for restitution to fill.

The Judge also commented (albeit obiter) that the detailed assessment procedure under the Solicitors Act 1974 was a regulatory process for reviewing bills, not a forum to decide standalone restitutionary claims. Those should be pursued in separate proceedings if genuinely arguable. Therefore, a detailed assessment proceeding was not the appropriate course of action.

The decision highlights the fact that courts will strictly uphold the terms of a carefully drafted CFA, particularly clear provisions on termination and payment that allocate risk with certainty—even if that results in a solicitor going unpaid. It highlights the critical importance of how a solicitor terminates a retainer, as terminating under contract versus at common law can dramatically affect entitlement to fees, with the wrong approach potentially forfeiting enforceable payment rights.

Overall, the judgment serves as a reminder that in CFAs, both procedural compliance and substantive terms are decisive in determining financial outcomes.

 

 

A summary of MH v CH [2026] EWHC 238 (SCCO)

Laura SugarmanLeave a comment

MH asked the court on 6 May 2025 to set aside a provisional assessment order made on 29 April 2025 (the “PA Order”). This all started with a long-running Court of Protection dispute, where MH was told to pay half of CH’s costs (by order dated 15 December 2023).

A Bill of Costs for £19,233.93 was sent to MH on 1 November 2024. MH replied on 22 November 2024 with his Points of Dispute, which included several documents. CH replied back on 13 December 2024. Then, on 15 April 2025, CH sent the N258 Bundle to the court—but later admitted (via their representative, Mr Cruise) that some important documents were accidentally left out. These included the annotated Bill of Costs, the Note in Relation to Points of Dispute, and MH’s open offer.

Because these documents were missing, the provisional assessment on 29 April 2025 went ahead without all the information. This made it hard for the judge to understand MH’s objections, but the PA Order was still issued that same day. MH then applied to have the order set aside.

The case came back to court for a hearing on 24 June 2025. At that hearing, a question came up: was the provisional assessment order final, or was it still up for review during the 21-day period set out in CPR 47.15(7)? The judge decided to pause things and asked both sides to send in written arguments, which they did in July 2025.

What Was MH’s Argument?

MH said the PA Order should be set aside because the N258 Bundle didn’t include all the required documents—specifically, the open offer and the full Points of Dispute. MH argued that this meant the order wasn’t valid.

MH also asked the court to look at:

  • Whether leaving out these documents was contempt of court or misconduct (to be decided later).
  • Whether a previous payment meant the costs had already been agreed (also to be decided later).

MH pointed out that there are other rules in the Civil Procedure Rules (CPR) that let the court set aside orders if things haven’t been done properly.

What Did the Judge Decide?

The judge looked at whether to use the court’s general powers (CPR 3.1(7)) or the specific rules for provisional assessments (CPR 47.15(7)). Here’s what was decided:

  • CPR 47.15(7) is for challenging specific items in a provisional assessment, usually by asking for an oral hearing within 21 days.
  • CPR 3.1(7) can be used for bigger procedural issues—like when the process hasn’t been followed correctly.

The judge found that not including MH’s full Points of Dispute was a serious procedural mistake. Because of this, the provisional assessment wasn’t carried out properly, so the usual review process didn’t apply. Instead, the court’s general powers could be used.

The judge also noted:

  • CH admitted the mistake.
  • The assessment was done without all the facts, which wasn’t fair.
  • MH acted quickly to raise the issue.
  • The error was serious, especially since MH couldn’t control what was filed.

What’s Next?

The judge set aside the PA Order, saying this was an exceptional situation. The case will now move forward as a detailed assessment, where all the remaining issues—including questions about contempt, misconduct, and whether the costs were already agreed—will be sorted out at the next hearing.

This case is a clear reminder of how important it is to follow the rules and make sure all required documents are submitted to the court. Missing paperwork can lead to confusion, delays, and even orders being set aside. By taking care to comply with the process and provide everything needed, this helps ensure fairness for everyone involved and keep cases moving forward smoothly.

For more information please contact Laura Sugarman – Laura.Sugarman@Clarionsolicitors.com

PI Trusts and Statutory Care Funding: Clarity for Deputies

Ella WilkinsonLeave a comment

The High Court’s recent decision in CGT, R (On the Application Of) v West Sussex County Council [2026] EWHC 293 (Admin) provides important clarity for deputies managing personal injury trusts. The case arose from a judicial review challenge to the local authority’s decision to refuse to fund CGT’s care needs from July 2024 onwards and to seek reimbursement of funding provided since 2020.

By way of background, CGT was born in 1994 and suffered a catastrophic brain injury at around three months old, leaving him with severe cognitive impairment, visual impairment, epilepsy and other lifelong disabilities. He requires daily care and has lived in supported accommodation since 2013. He lacks capacity to manage his financial affairs, and his mother was appointed as his property and financial affairs deputy by the Court of Protection in 2011.

In 2012, the Criminal Injuries Compensation Authority (CICA) awarded him more than £3.5 million, including over £2.6 million specifically for future care. The award was conditional on the funds being placed into a discretionary trust for his benefit, with the Official Solicitor acting as trustee.

The local authority later refused to continue funding CGT’s care, arguing that capital in the personal injury trust counted as available resources and that ongoing public funding would amount to double recovery. The judicial review succeeded. The court rejected both arguments, holding that the decisions to cease funding and demand repayment were unlawful. It also confirmed that capital held in a properly constituted personal injury trust must be disregarded in full when assessing care funding under the Care Act 2014 and surrounding regulations.

For professional deputies, the implications are practical. A trust established from personal injury compensation does not reduce P’s statutory entitlement to care funding, even where the trust contains sums identified for future care. Deputies can manage P’s affairs in the knowledge that the existence of trust capital should not trigger withdrawal of public funding or retrospective recovery.

The judgment also narrows the reach of double recovery arguments in this context. Local authorities cannot rely on that principle to refuse or claw back statutory care funding. If duplication concerns are to be addressed, they belong at the point of settlement, in the structure of the award, or through Court of Protection oversight and not within the eligibility assessment itself. Deputies should ensure that trust documentation reflects P’s needs and that any undertakings or arrangements from prior deputies are understood, but should not assume those arrangements alter the statutory framework.

The decision is also a reminder of process. Trust capital is disregarded, but local authorities remain entitled to request information about the financial position. Deputies should provide what is necessary and accurate, without inviting a reinterpretation of the statutory test.

In practical terms, the judgment reinforces the deputy’s role in safeguarding compensation awards while preserving access to statutory care funding. Properly structured personal injury trusts remain effective protection, and local authority discretion does not displace the regulations.

If you have any questions, please get in touch with Ella Wilkinson (Ella.Wilkinson@clarionsolicitors.com) who is an Associate in the Costs & Litigation Funding Team at Clarion Solicitors, specialising in Court of Protection costs.

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