The SCCO now insist on the inclusion of the details of P’s estate in respect of COP Bills sent for assessment where this information is not readily available within the Bill narrative. This is to ensure that P is not below the hardship threshold or that the Bill drawn up will not take P into hardship and to ensure proportionality in respect of the size of P’s estate and the costs being claimed.
Proportionality concerning the assessment of costs is covered under Part 44.3(5) of the Civil Procedure Rules, which states that costs incurred are proportionate if they bear a relationship to:
- The sums in issue in the proceedings;
- The value of any non-monetary relief in issue in the proceedings;
- The complexity of the litigation;
- Any additional work generated by the conduct of the paying party;
- Any wider factors involved in the proceedings, such as reputation of public importance; and
- Any additional work undertaken or expense incurred due to the vulnerability of a party or any witness.
N.B Each factor should be given equal weighting BUT in practice there is a tendency to give superior weighting to value.
Further under Part 44.4 (1)(a)(i) the Court will have regard to all circumstances in deciding whether costs were proportionately and reasonably incurred or proportionate and reasonable in amount when assessing costs on the standard basis. The Court will also have regard to the amount or value of any money or property involved.
In a recent matter submitted to the SCCO a Costs Officer reduced the profit costs in a Bill of Costs by over 25% on the basis that the costs claimed were disproportionate to the size of P’s estate. It is therefore important to keep proportionality in mind at all times, particularly when submitting Bills for assessment.
The Court of Protection Rules 2007 (Overriding Objective) states that the Court will “deal with the case in ways which are proportionate to the nature, importance and complexity of the issues.”
As set out above there is a tendency by the Court to give superior weighting to value. It is important to consider the following factors:-
- Settlement awards
- LA funding
- Periodic payments
- Business interests
- Ongoing litigation
- Money Trusts
- Liquid assets
The conduct of P or their family may have caused additional work by the Deputy. If this is the case details of this should be included within the Bill narrative. The likely issues that may arise include, extended family involvement, a complex care dynamic, difficult parents of P, frequent requests for funds and a directly employed care team.
Complexity is also a major factor and should also be taken in account. Often the Deputy will need to take the following matters into account and substantial work may be completed in relation to the following areas:-
- Complex investments
- Extraordinary applications
- Business interests
- International elements
- Money held in Trusts
- Specialist care needs
Following the Jackson Reforms there is more weight on proportionality, and it is always worthwhile remembering that the burden of proof is on the party seeking costs to resolve any doubt which it may have as to whether costs were reasonable and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.
Tanya Foran is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact Tanya by email at Tanya.Foran@clarionsolicitors.com or the team at firstname.lastname@example.org.