Following submission of a Bill of Costs, the Costs Officer will assess the same to ensure that the costs charged are fair and reasonable, and will often refer to case law to justify the decisions they make with regard to reducing/excluding entries.
Please see below some of the most common case law that is applied on a regular basis by the Costs Officers:
R v Legal Aid Board Ex Parte Bruce (1991)
This case dealt with the issue of two or more fee earners at one attendance.
It was stated that “Solicitors are not to be expected to carry knowledge of all the law in their heads… if the problem is outside the scope of their experience they will wish to discuss it with others who are more qualified… But knowledge of the law, however acquired or recalled, is their stock in trade… In so far as expense is involved in adding to this stock in trade, it is an overhead expense and not something that can be charged to the client”.
Garylee Grimsley (1998)
This case was a continuation of the issues in R v Legal Aid Board Ex Parte Bruce (1991), in which two fee earners at one attendance was reduced on the justification of duplication. As such, it is recommended that two fee earners at an attendance are only claimed in exceptional circumstances and where reasonable to do so, such as where there is a safety risk.
Trudy Samler (2001)
This case dealt with attendances upon the Protected Party and reductions due to an excessive amount of contact.
In the case of Trudy Samler 2001, it was stated “The practice…. is easy for a receiver to justify one visit to the patient each year but that each succeeding visit must be justified…. Could the progress made by the meeting have been achieved more economically by way of a telephone call or correspondence?”.
The case also looks into the costs incurred when contact is instigated by the Protected Party and whether the Deputy should be expected to be paid for such contact. Master O’Hare advised that part of the Deputy’s duty is to prevent such expenses being incurred as it is their responsibility to look after the Protected Party’s financial affairs and to manage contact with clients as best as possible, so expect reductions to excessive contact with the Protected Party or other parties to reflect this decision. If there are high levels of contact with P, this should be justified and explained as best as possible within the narrative of the bill of costs to set out why and what steps were taken by the Deputy to best manage this.
Jamie Walker (2002)
This case dealt with incoming correspondence.
Master O’Hare applied the following provision for time spent perusing incoming correspondence: “Routine letter out and routine telephone calls will in general be allowed on a unit basis of 6 minutes each… The unit charge for letters out will include perusing and considering the relevant letters in and no separate charge should be made for incoming letters”.
This decision also impacted time claimed for arranging payments and considering invoices which are routinely reduced to 3 minutes at Grade D rate on assessment.
Leighanne Radcliffe (2004)
This case dealt with enclosure letters whereby 6-minute claims for letters enclosing invoices were reduced to 3 minutes.
Costs Officer Sainthouse referred to Master O’Hare’s decision which had been made in the matter of Jamie Walker in that the time spent checking the invoice, arranging payment and preparing the appropriate letter/cheque was non-fee earner work.
Smith & Others (2007)
This case dealt with hourly rates and determined what Deputies should be charging hourly.
Master Haworth ruled that Court of Protection work should be allowed in accordance with the guideline hourly rates published by the SCCO.
Yazid Yahiaoui (2014)
This case dealt with the introduction of blended rates and stated that “…where work is being carried out either as a team or by an individual that spans work that would normally be dealt with by a Grade B, C or D fee earner, a blended or enhanced rate may be appropriate…”
Philpott (2015 – unwritten)
This case dealt with record keeping.
In the case of Philpott (2015- unwritten), Master Haworth commented in respect of updating the Protected Party’s financial records, stating “It seems to me that the inputting of data into P’s ledger is not fee earning work. At most it is bookkeeping which, to my mind, is an overhead of a solicitor’s practice. This work has to be distinguished from for example, reviewing or perusing the data to come to a decision as to what then needs to be done with a P’s funds. To my mind that may well amount to fee earning work for which the solicitors can charge separately at the appropriate rate.”
Therefore, we recommend avoiding the word ‘updating’ within your work.
Staffordshire v SRK [2016]
This case dealt with welfare work, in particular, work relating to the application for the Deprivation of Liberty Safeguards.
The case stated: “A deputy who agrees to pay for care and treatment of P or for a property for P could not properly ignore the issues (a) whether P was being deprived of his liberty or restrained, and (b) whether that was lawful or needed authorisation under the DOLS or by the making of a welfare order”. As such, this time is always included in the bill of costs. Other welfare work is likely to be reduced or disallowed on assessment.
Tina Jayne Cloughton (1999) and Fuseon Limited (2020)
These cases dealt with delegation of work to a lower grade fee earner.
It was stated that a professional Deputy should delegate suitable tasks to colleagues and employees. The Deputy must be careful not to increase his/her claim for costs by duplicating work done by colleagues.
In 2020, a decision was made in the case of Fuseon Limited which stated that time spend delegating should be fully recoverable. This was a civil decision, and therefore it’s not known whether this same approach will be taken in COP matters. Where delegation has occurred in a COP case which progresses the matter and ultimately saves P money, attempts should be made to recover this time.
The time claimed should be proportionate to the money saved to P, and any work that is delegated should then not require extensive supervision, as this would be considered duplicative.
Understanding the e-bill
If the Costs Officer has applied case law to the Bill of Costs on assessment, they will outline this in Tab Z. Solicitors should be aware of the case law to ensure that they’re not charging the Protected Party unfairly and to understand the reductions applied and whether these are justified.
If you require further information in respect of Court of Protection costs, post-assessment advice or case law, please do not hesitate to contact Ellie Scally.
You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.