The Friendly Trust’s Bulk Application (2016) EWCOP 40 and Fixed Costs

On 24 September 2015, The Friendly Trust, a non-profit organisation who  assisted people with learning difficulties made a bulk application in respect of several orders which had appointed it’s office holders as property and affairs deputies, as well as a number of new deputyship applications. The Trust were seeking entitlement to charge fixed costs up to the amount permitted under Practice Direction 19B of the Court of Protection Rules 2007.

Practice Direction 19B of the Court of Protection Rules 2007 states;

  1. Solicitor Deputies may charge general management fixed costs of £1,500.00 plus VAT for the first year and £1,185.00 for subsequent years. Can also claim fixed costs for work in connection with the initial application to appoint a deputy of £850.00 plus vat and £235.00 plus vat for the annual report.
  2. Public authority deputies can charge a fixed fee of up to £700.00 for general management in the first year and £585.00 for subsequent years. Can also claim £670.00 for the application and £195.00 for the annual report.
  3. Annual general management fixed costs of the public authority deputies are 46% of the solicitors rate for the first year and 49% for subsequent years excluding vat.
  4. If the p’s estate is under £16,000.00 a solicitors annual management fixed costs are limited to 4.5% of the value of the estate and public authorities are limited to 3%
  5. No VAT chargeable in public authority appointments

The bulk application concerned a significant number of people with low-value estates who fell outside of the legal aid scheme and who were unable to afford legal representation or the services of an Official Solicitor. It was requested that the Orders be both retrospective and prospective and allow for the costs to be applied in future cases.

It would appear that the problem with ‘retrospective’ bulk orders meant that the Trust were at liberty to apply for any costs order it believed to be appropriate in a future case at that time. This would mean that the person affected would suddenly be liable for an additional deputyship fee for each year that the Deputy was appointed.

The issue arose from an assurance visit with the Office of the Public Guardian(OPG). It transpired that the Trust had been charging fixed costs allowed to Solicitors under Practice Direction 19B of the Court of Protection Rules 2007. The OPG considered that the Trust should only charge the rates applicable to local authorities.

District Jude Eldergill believed that a ‘solicitor’ was defined by statute, Solicitors Act 1974 and the work undertaken by the Friendly Trust was not undertaken or supervised by a Solicitor.

The Judge directed the OPG to file a position statement. The statement contained the following;

  • The OPG questioned whether it was in the best interests of the Friendly Trusts clients to charge the proposed higher fee rate permitted to solicitors as opposed to that which is charged by a local authority.
  • The OPG was concerned that without such evidence, the proposed fee could be disproportionate in relation to the services provided by the friendly trust.

The OPG did not support the application. There was a fear that a precedent would be set and a possible flood gate opening for other similar organisations to charge a higher rate.

The Judge concluded that the Trust performed a valuable service to the local community, however the works undertaken were not equivalent to a Solicitor Deputy.

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