Can a non-solicitor Deputy charge fees at the solicitors’ rate?

In the recent case of The Office of Public Guardian v Andrew Riddle (Nos 1 and 2) Senior Judge Hilder had to decide if the professional Deputy could charge fees at the solicitors’ rate.

Background.

Mr Andrew Riddle is the managing director of ‘Professional Deputies’ that offers services that manage the property and affairs of adults who lack capacity. Mr Riddle is not a solicitor and Professional Deputies is not a Solicitors practice.

His primary position is that he should be able to charge fees at the solicitors’ rate, but he also had a secondary position in that he should be authorised to charge fees at a tailored rate, somewhere between public authority and solicitor rates.

The OPG’s position was that Mr Riddle should not be charging the solicitors’ rate until the Court of Protection makes an order to state otherwise.

Hearing

At the initial hearing, the Court was not satisfied that the deputy’s account of his qualifications and experience justified any conclusion that he should be remunerated at a higher rate than public authority deputies.

Judge Hilder held (at paragraph 104) that it would be appropriate to exercise the court’s discretion to extend the solicitors’ costs provisions to a non-solicitor deputy where that deputy demonstrates that they are also subject to professional obligations comparable to those integral to being a solicitor, and where that non-solicitor deputy accepts being held to the same standards as a solicitor. 

However, she considered the facts of the case and his experience and qualifications but was satisfied he did not fulfil these benchmarks.

She did acknowledged that Mr Riddle was not alone in requesting a review of the fixed rates under Practice Direction 19B, as the rates have not increased since 2010 and The Professional Deputies Forum argues that rates are now therefore 31% lower in real terms than they were in 2010.  She also noted that, there was a current review of solicitors’ guidelines rates in civil cases, which have also not been increased since 2010.

In paragraph 106, Judge Hilder observed that the rates of Practice Direction 19B should be similarly reviewed.  However, that does not provide any basis for unilaterally behaving as if the rates are other than as they are. Until there is a review, she could not give any weight to this part of Mr. Riddle’s argument as to do so would undermine the Practice Direction.

Senior Judge Hilder thereafter, made orders refusing Mr. Riddle’s applications for authorisation to charge fees at the solicitors’ rate and refused his applications for relief from liability for past charges. She also allowed Mr Riddle a period of time to make good his word and restore each estate to its rightful level.

At the second hearing, the judgement held that Mr Riddle had been good to his word, and that the Public Guardian did not now seek revocation of his appointment in those cases. The judgment also confirmed that Judge Hilder had refused his application to charge fees at anything other than the public authority rates.

It was also agreed that each party should bear their own costs, and the Judge rejected the claim for the Public Guardian to pay any part of his costs.

This case highlights that when non solicitor deputies are managing the property and affairs of those with incapacity; they should carefully check the specific terms in the Deputyship order to ensure their charging rates are in line with the order. If the Deputy has any doubts, they should contact the OPG and then if necessary, seek authority from the Court.

The judgement also gives the OPG the standing to challenge cases and bring these to the courts attention without the consequence of having a costs order made against them.

Brian Ferry is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact him at Brian.Ferry@clarionsolicitors.com and 07741 663809 or the Clarion Costs Team on 0113 246 0622.

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