Further changes to CoP E-Filing

Further changes to E-Filing will be introduced from 17 February 2019. 

Following a recent review of e-filing practices by the SCCO, assessed bills lodged for certificate must be tallied. In instances where the Costs Officer has not already tallied the bill, it will be the solicitor’s responsibility to do so. Documents lodged for the issue of a certificate (summary sheet, assessed bill and Final Costs Certificate) must be filed under the heading ‘Filing – Certificate Summary Sheet (COP)’ and not ‘Filing – Acceptance of Provisionally Assessed Bill’ or any other option. Please note these documents must be filed as separate documents. Pending approval, the SCCO hope to circulate a basic guide on lodging documents for certificate in the near future. These changes are introduced to streamline the e-filing process.

The SCCO don’t require every entry in the bill to be tallied but simply the allowed figures written on the bill summary page situated in the middle of the bill of costs, detailing the profit costs, VAT, disbursements etc. The SCCO will eventually be looking to get rid of the separate bill summary sheet which will prevent duplication, but for now, both are required.

If you have any queries or would like to propose topics for future blogs by Clarion, please contact Stephanie Kaye at Stephanie.kaye@clarionsolicitors.com or call on 0113 3363402.

The Precedent T – a new Costs Management precedent, watch this space!

The CPRC have released minutes of their latest meeting.  The committee had been asked to consider proposals and options relating to revisions to CPR r3.15 and PD 3E.

Discussions centred around whether the no retrospective costs budgeting rule applies and how it works within the budget variation. It was mooted that a rule change which sets out the factors that the court should take into account may be appropriate.  Proposals were also made regarding a new draft precedent T (in excel format), its intention being to set out the particulars of the proposed budget variation.

It was recognised that there were varying practices currently in play when applying to revise a budget, and  because of that it was proposed that a solution would be to codify the procedure. 

The committee remained alive to the fact that any rule change should not open up parties to attempt to budget repair. More detail regarding the importance of revising the budget can be found in our previous blog here.

The subjective topic of what is a ‘”significant development” was discussed. Currently PD3E paragraph 7.6 provides that budget variations are warranted if a significant development occurs. It was considered critical that the significant development was explained early in the process to avoid any attempt to budget repair.

The committee agreed the Precedent T in principle. It was agreed to re-draft their proposals which cater for ‘retrospective costs budgeting’. We should also see some further guidance which will add clarity between ‘budget variations’ and ‘ood reason to depart from the budget’.

Sue Fox 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, or the Clarion Costs Team on 0113 246 0622.

Departure from the rules – Public Guardian ordered to pay costs

In the case of JBN, Re [2019] EWCOP62 (23 December 2019), the Public Guardian made an application to the Court requesting the revocation of a Lasting Power of Attorney for property and financial affairs, which was made by JN two years prior, appointing DN, his son. The witness statement made by the investigator detailed that there were concerns that DN had not acted in JN’s best interests during the process of selling JN’s property, in which he had transferred the majority of the proceeds to himself. There were further concerns that JN and DN’s finances had become mixed, through the operation of a joint bank account. In conclusion, the Public Guardian expressed that DN’s actions had jeopardised JN’s future care costs, and they requested that the Court suspend the Lasting Power of Attorney and appoint an Interim Deputy.

Shortly afterwards, DN challenged the application, stating that JN had held the required capacity at all times, and that he had not committed any wrongdoing.

A further hearing was listed in June 2019, in which the Judge dismissed the Public Guardian’s application, restored the Lasting Power of Attorney appointing DN to act, and discharged the interim Deputy.

Following the hearing, DN sought the recovery of his costs from the Public Guardian, which he estimated to be in the region of £82,000.00. Ms Galley, acting on behalf of DN, argued that the Public Guardian had acted unreasonably in the matter, and that as such, the usual costs position as detailed in Rule 19.2 of the Court of Protection Rules (2017) should be departed from.

The Judge considered a number of issues surrounding the conduct of the Public Guardian, and noted that the apparent overriding issue in the matter was the lack of clarity as to JN’s capacity at the time of the property sale. The Judge ruled that as a result of the Public Guardian not considering the capacity evidence, that proceedings were brought which went beyond what was necessary. Furthermore, the Judge confirmed that the application made by the Public Guardian to obtain an Interim Order to suspend the Lasting Power of Attorney should have been made on notice to DN, as he was fully cooperating in respect of the queries raised as to his conduct.

The outcome of this matter was that a Costs Order was made, providing that the Public Guardian was not entitled to be paid their own costs from JN’s estate, and that they should pay 50% of the costs incurred by DN, including the costs of the final hearing. All costs incurred in the matter were to be assessed at the Senior Courts Costs Office.

Ella Wilkinson is an Apprentice Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at ella.wilkinson@clarionsolicitors.com, or on 0113 288 5693.

Court of Appeal finds approved costs budget irrelevant when indemnity basis awarded

The Court of Appeal decision in Lejonvarn v Burgess & Anor [2020] EWCA Civ 114 has determined that an approved costs budget is irrelevant where indemnity costs are ordered.

The appellant’s case was that whilst there was an approved costs budget of £415,000, her actual costs were £724,265.63. To allow this would effectively reward her for failing to keep within the budget. Interestingly the budget was only partially costs managed and therefore was subject to change in certain phases in any event.

Lord Justice Coulson acknowledged The figure produced by an approved cost budget mechanism (CPR r.3.12-r.3.18) is a different thing to the final assessment of costs following the trial. The former is prospective; the latter is retrospective. True it is that, in many cases, the approved costs budget will be the appropriate starting point for the final costs assessment. But that does not detract from the underlying proposition that they are different figures produced by different considerations with different purposes” and in any event “If there is an order for indemnity costs, then prima facie any approved budget becomes irrelevant.

Although Lord Justice Coulson was not persuaded that there was an approved budget in this particular case he made it clear that costs assessed on an indemnity basis are not constrained by an approved costs budget. He even went so far as to say that his obiter comments in the cases of Elvanite and Bank of Ireland v Watts which suggested the contrary, should be disregarded.

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

Is a Court Fee Recoverable Inter Partes when a Fee Remission was suitable?

The issue of whether a Court Fee is recoverable by the recieving party, when a fee remission was available, is a contentious one. However, in the recent case of Ivanoy v Lubble which was an appeal to a Circuit Judge, guidance has been provided.

This case was a low value Personal Injury matter which settled for £6,500 and the Court Fee is dispute was the Hearing Fee. The Defendant argued that the Claimant was eligible for a Fee Remission and so they should not have to pay the Court Fee as part of the Claimant’s costs.

There was a reported County Court case last year, Stoney v Allianz (2019), which had similar facts and the Court Fee was not recoverable as part of the Claimant’s costs.

In the present case, the Circuit Judge considered the issues and identified that under CPR 44.3 the burden of proof on a standard basis assessment, which this case was subject to, lay with the Claimant to prove that the costs incurred were reasonable and proportionate.

It was also confirmed that the Fee Remission scheme was designed to allow litigants of modest means to access justice and that Claimant’s could not use an argument that the scheme was unpredictable or a burden to the as a reason for not utilising the scheme.

However, the core argument centred around whether it was reasonable to expect the Claimant to use the scheme or whether this places a burden on the taxpayer which is unreasonable. This argument relates to one of public policy and whether the public purse or the Defendant bears the Court Fee. The Circuit Judge considered the relevant caselaw in relation to this issue along with CPR 44.3 and CPR 44.4; it was confirmed that “there are strong public policy grounds for saying that it is not unreasonable for a Claimant to preserve the public purse and direct the cost of wrongdoing on the tortfeasor”.

As such the Circuit Judge confirmed that it was not unreasonable for the Claimant to pass on the Court Fee to the Defendant rather than relying on the public purse by virtue of the Fee Remission scheme, subject to the Court being satisfied that the Court Fee was incurred by the Claimant.

This blog was written by Matthew Waring who is an Associate in the Costs and Litigation Funding Team at Clarion. Matthew can be contacted on 0113 288 5639 or at Matthew.Waring@clarionsolicitors.com

Estimating your legal costs – Why?

Not only is it prudent and good practice, but it is essential that clients are regularly provided with estimates of their potential legal costs and are appraised in that regard.

The SRA require lawyers to provide their clients with the best possible information regarding the cost of the matter. This should be provided at the outset and reviewed and updated as and when necessary. Estimates of costs up to a particular stage are inadequate to meet the SRA requirements, an estimate of costs up to the conclusion of the claim is required.

The SRA requires lawyers at the outset to analyse whether pursuing the claim is commercially viable. Does the outcome justify the risk of having to pay someone else’s fees? So, an explanation needs to be given to the client of the likely costs of the claim, to include both party’s costs and whether the claim is worth pursuing in view of that. This should be reviewed throughout the lifetime of the claim and updated if appropriate. The reasoning is that the client should be able to make a fully informed decision when deciding to pursue litigation, a partial estimate does not allow this.

This is good practice in any event as it ensures that your client’s expectations are managed and will lead to no surprises. This transparency can lead to less disputes regarding the level of fees and the avoidance of any complaints in law firms which centre around fees.

The type or complexity of the claim will really depend on how sophisticated the estimate will need to be, however scoping the work properly will alleviate any scope creep.

Moreover, preparing an estimate of how much you consider that the claim will cost will assist regarding your approach, a more informed decision can be made regarding this. Providing this information does show confidence in pricing and in any event this more sophisticated pricing is being seen in the marketplace.

In the event of scope creep, a detailed estimate can assist and justify those further costs that are associated with the additional work. It is wise to keep your client informed if any of the out of scope work is not recoverable from the otherside, failure to do so may put you at risk regarding those additional costs.

In addition to identifying out of scope work, it is sensible to monitor your estimate and advise the client if the estimate is subject to change. If a detailed estimate has been provided at the outset it will be much easier to explain why the estimate requires increasing.

The draconian sanctions and restrictions surrounding budgets do not apply to estimates, the estimates are used as a yardstick to measure reasonableness. It is not intended to be straight jacket, that said, they do need to be prepared with care because if the client can show reliance and the matter proceeds to solicitor and own client assessment then your costs are at risk of a reduction as a result of that reliance.

Sue Fox is a Senior Associate and the Head of Costs Management in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at sue.fox@clarionsolicitors.com and 0113 336 3389, or the Clarion Costs Team on 0113 246 0622

 

Court of Protection Deputies – Compulsory E-Filing NOW!

As of Monday 7 October 2019, the pilot began for voluntary electronic filing at the Senior Courts Costs Office. E-Filing in Court of Protection cases is compulsory from 20 January 2020.

Having spoken to the SCCO, they have confirmed that from Monday, bills of costs will be rejected if submitted in paper form. The SCCO will be adopting a strict system and will return files if the bill of costs and supporting papers are not electronically submitted.

To E-File, this requires the firm to register as a user for E-Filing. Each individual user then needs to create a profile to be an ‘E-Filer’ using an email address and password (https://efile.cefile-app.com/login). Thereafter, each individual case is created, detailing the parties/representatives, references, addresses and all other relevant information. If the Deputy wants their costs provider to help them with this process, they would need to be added as a party by the Deputy’s firm on an individual basis. In order to request an assessment, professional Deputies are required to send the bill of costs, the N258B and the authority to assess (the Order) through e-filing, in PDF format. This The SCCO, for the time being, still require the files of papers to be submitted by DX/post to undertake the assessment as electronic bundling is not available.

Once your case is submitted online, you will receive confirmation by email. This confirmation can be posted to the SCCO with your paper files. The SCCO will then marry up the bill of costs and the files at their offices. The bill of costs will be manually assessed and scanned onto the system, which you can access online and your files will be returned. Eventually, the SCCO would like electronic COP bills to be submitted which will allow them to undertake electronic recalculations, but this is not possible just yet.

It’s worth noting that payment can no longer be made by cheque to the SCCO – the firm must have a PBA or debit payment facility. This is much better for the Court and payments have so far been much more manageable.

The SCCO have experienced serious staffing issues in recent months but they are now fully staffed and clearing the backlog. In respect of Court of Protection assessments, they are currently in receipt of approximately 180 files for assessment per week, so it may take a little while longer to resume a reasonable turnaround of bills.

Information about existing FAQ’s following the E-Filing in other Courts can be found here: https://leedslawsociety.org.uk/wp-content/uploads/2019/04/E-Filing-Frequently-Asked-Questions.pdf

The link to the government website regarding CE-Filing which includes step by step guides can be found here: https://www.gov.uk/guidance/ce-file-system-information-and-support-advice

For more information, please contact Stephanie Kaye.