The Senior Courts Costs Office have recently released their 2023 guide, and within this Section 27 specifically deals with Court of Protection cases. Please find below a summary of the main points raised.
Reference to Fixed Costs:
The guide references the fixed costs available to practitioners, which can be found under Practice Direction 19B Court of Protection Rules (2017). The Court Order in place will state whether fixed costs apply, or whether the Deputy is entitled to a detailed assessment of their charges. Deputies have the option of electing to take fixed costs instead of proceeding with detailed assessment if deemed appropriate in the case. Further details on the fixed costs available can be found at: https://clarionlegalcosts.com/2022/01/11/strongwhat-fixed-costs-can-be-taken-within-court-of-protection-cases-strong/
Process of Assessment:
Where P is alive and continues to lack capacity to manage their property and affairs, then the Deputy is unable to simply agree their costs. Where P is subject to an ongoing Order in the Court of Protection and it is ordered that the Deputy’s costs are payable out of the estate of P, then a detailed assessment will be required. However, there are some exceptions where a Deputy is available to agree their costs without the need for assessment, such as in agreeing their outstanding costs with a trustee or administrator where P has passed away, or in agreeing their outstanding costs with P if they have regained capacity and are no longer subject to an Order in the Court of Protection.
To proceed with a detailed assessment, the Deputy is required to lodge with the SCCO:
- A request for detailed assessment via form N258B (suitable for the majority of cases where the fees are payable out of a fund)
- A copy of their bill of costs
- The document giving the right to detailed assessment (Order)
- Copies of all Orders made by the Court in relation to the costs to be assessed
- Copies of any Counsel’s fee notes or expert fees claimed within the bill
- Written evidence of any other disbursements claimed that exceed £500.00
- A statement signed by the receiving party providing their name, address for service, reference and telephone number
- A statement including a postal address of any person having a financial interest in the outcome of the assessment, including confirmation of whether this person is a child or a Protected Party
- Relevant fee payable (currently £87.00)
- Copies of the OPG102/OPG105 for the applicable year where the assessment relates to general management of P’s property and financial affairs
As a general rule, bills of costs with profit costs of less than £100,000.00 will typically be dealt with by a Cost Officer, with bills in excess of this or more complex in nature tending to be dealt with by a Costs Judge.
Format of bills:
As has been the case since 1 January 2020, all Court of Protection matters are to be e-filed using the CE-File system.
From November 2022 to March 2023, a successful pilot scheme ran regarding the use of the e-bill for Court of Protection cases. E-bills can continue to be filed with the SCCO, however the older style paper bills can also still be prepared and submitted at this time. For general management bills, the year covered within the bill should also be stated at the start, and all bills should include the title of the matter, name and address of the firm, contact number and the matter reference.
For bills with profit costs of under £3,000.00 excluding VAT and disbursements, the Deputy can elect for a short form bill of costs to be prepared for assessment.
For work done up until 31 December 2017, the Costs Officers will continue to apply the 2010 Guideline Hourly Rates when assessing bills, unless exceptional circumstances apply.
Further to the decision in PLK and Others (2020) and the rates considerations undertaken, the SCCO have clarified that the judgment does not serve to disapply the indemnity principle in that the practitioner is able to bill at higher rates than provided for within their retainer/client care paperwork. If the rates stated with a retainer are in line with the 2010 Guideline Hourly Rates, then the Deputy is unable to claim and recover any higher rates until this has been updated. If a retainer is silent as to rates or there isn’t a retainer in place, then the Costs Officers will take the approach of applying the 2010 Guideline Hourly Rates up until 30 September 2021, and the 2021 Guideline Hourly Rates thereafter.
In the eventuality that a retainer provides for the 2010 Guideline Hourly Rates alone or for a claim in line with the judgment in PLK and Others, then the Deputy is unable to claim higher rates until this paperwork is updated to facilitate a claim for the 2021 Guideline Hourly Rates. The SCCO have reiterated that it is the responsibility of practitioners to ensure that their paperwork is kept up-to-date, in order for them to keep benefitting from any rate increases.
Authority to assess costs:
The SCCO have confirmed that the Costs Officers will treat the costs of a deputyship application as ending on the date of issue of the Order, which it is noted may be some time after the actual date of the Order. Therefore, any costs incurred after the issuing of the Order will be treated as falling within the first period of general management.
When a Deputy then lodges their bill of costs for the initial management period following their appointment, they should provide a copy of the Order authorising the assessment of their costs. However, the SCCO have advised that they keep records of Orders, and as such that the Deputy is not required to continue to submit a copy in filings for subsequent management years.
In addition, where the Deputy has the option of either taking fixed costs or opting for detailed assessment and chooses to have their costs assessed, then it is good practice to confirm within the narrative of the bill that they have not taken fixed costs for the work undertaken.
Options post assessment:
If the Deputy is not content with the outcome of the assessment and disagrees with reductions made, then they have the option to contact the Costs Officer within 14 days of receiving the provisional assessment to request an informal review of the bill. If the Deputy continues to be dissatisfied after the Costs Officer’s response, then they can progress the matter and request that the SCCO fix a date for an oral hearing before a Costs Judge.
Where a Deputy wishes to accept the provisional assessment then the bill summary requires completion and submission, along with certifying the relevant section of the bill of costs. The Final Costs Certificate will thereafter be issued by the SCCO.
The general rule with regards to health and welfare work is that there will be no Order as to the costs of proceedings, unlike for costs incurred in relation to property and financial affairs which will generally include an Order for costs to be paid by P or charged to their estate following assessment. If proceedings concern a mix of the two, then the SCCO will as best as possible apportion costs between respective issues.
Costs of sale or purchase of property:
The assessment of costs for these matters generally will take place at the end of a transaction, unless the Court directs otherwise. Unless a sale is completed by trustees, then the fixed rates set out under Practice Direction 19B will apply.
An Order or Direction that costs incurred during the lifetime of P are to be paid out of the estate can be made up to six years after their death. Costs up until the date of the death of P are covered under the authority given in the Deputyship Order, however if these cannot be agreed with the personal representatives, then the outstanding charges can also be assessed under the existing Deputyship Order.
Where P dies whilst an assessment is pending, the Deputy should inform the SCCO in order to suspend the assessment of costs incurred after the date of death until a final direction is obtained, which the Deputy is required to apply for from the Court. Once costs have been assessed, the Deputy will be required to serve a copy of the bill on the appointed personal representatives, or alternatively can seek to agree their outstanding charges with the personal representatives instead of opting for the assessment process.
Payments on account:
Deputies are able to take payments on account, known as interim bills, for the first, second and third quarters of the year in respect of annual management charges, taking into account the size of the estate and functions performed and ensuring that their charges are proportionate and reasonable with regards to the same. Interim bills are to not exceed 25% of the estimated annual charge each quarter, and should not exceed 75% across the management year, as set out under Practice Direction 19B.
In summary, the Court of Protection section of the SCCO Guide for 2023 provides clarification as to key information for professional Deputies with regards to the assessment process and the recovery of their costs for work undertaken on P’s behalf, and is a useful reference tool in this regard for practitioners.
Ella Wilkinson is an Associate in the Costs and Litigation Funding team at Clarion, and can be contacted for further information at firstname.lastname@example.org