The Applicant, MR made a successful application for her late mother’s Clinically Assisted Nutrition and Hydration (CANH) treatment to be withdrawn and for her to be transferred to a hospice. Thereafter an application for costs was made against the Clinical Commission Group (CCG).

The Judge held that the CCG should pay half of the Applicant’s costs based on the following;

Section 55 (1) of the Mental Capacity Act 2005 – the Court has discretion as to costs.

Section 53 (3) allows for the Courts to determine to whom and to what extent the costs are paid, however it must be noted that the general rule is that where proceedings concern the Protected Party’s welfare, there should be no order as to costs, (Rule 157, Court of Protection Rules 2007).

The Courts can depart from rules 156-158 in exceptional circumstances. The issues would be as follows;

1. a) Conduct of parties;
2. b) Whether a party had succeeded in part of his case, even if it has not been wholly   successful; and
3. c) The role of the public body in the proceedings

Conduct includes;

1. a) Conduct before, as well as during the proceedings
2. b) Whether it was reasonable for a party to raise, pursue or contest a particular application;
3. c) Whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response.

The Official Solicitor criticised the investigation, due to the significant delays on the part of the CCG.

The CCG stated the request to pay two thirds of the Applicant’s costs was ‘manifestly excessive’. The analysis led to a submission that costs were to be awarded against the CCG in respect of unreasonable conduct being established. It was concluded that the CCG were in part responsible for the Applicant’s costs and were therefore liable for the same.

A departure from the no costs rule was applied and the matter was concluded.

If this is something which you require assistance with, please do not hesitate to contact myself or our team at COPCosts@clarionsolicitors.com.

For a person who lacks capacity, the making of a Will can only be made if approved by the Court. This is known as a ‘Statutory Will’.

The Courts have full discretion in respect of the costs of the application and no costs can be taken from a person’s estate without an Order from the Court. In general, the Courts apply the rule that the costs of proceedings concerning a person’s property and financial affairs are to be paid from that person’s estate, subject to detailed assessment. Please note that this general rule, should not be taken for granted, as the Court can, considering the conduct of parties, direct one person to pay another party’s costs or even refuse a party costs altogether, if incurred unnecessarily. The Courts also have the power to limit costs if they feel that it would be appropriate to do so.

In accordance with Practice Direction 47, Rule 47.18(3) it states that a Statutory Will Application should be filed at Court with a N258B (Request for Detailed Assessment – Costs payable out of a fund other than the Civil Legal Aid Fund) rather than a N252 (Notice of Assessment of Bill of Costs). Rule 47.18(3) reads as follows:

“The request for a detailed assessment of costs out of the fund should be in Form N258B, be accompanied by the documents set out at paragraph 17.2(1) (a) to (e) and the following—

 (a) a statement signed by the receiving party giving his name, address for service, reference, telephone number,

 (b) a statement of the postal address of any person who has a financial interest in the outcome of the assessment; and

 (c) if a person having a financial interest is a child or protected party, a statement to that effect.”

 The bill of costs will then be assessed by a Costs Officer at the Senior Courts Costs Office.

Further to the above, Practice Direction 47.19 of the CPR in relation to the costs payable out of a fund other than the Community Legal Service fund or by the Lord Chancellor states the following:

“Rule 47.19 enables the court to direct under rule 47.19(3) that the receiving party must serve a copy of the request for assessment and copies of the documents which accompany it, on any person who has a financial interest in the outcome of the assessment…the court will decide, having regard to the amount of the bill, the size of the fund and the number of persons who have a financial interest, which of those persons should be served and may give directions about service and about the hearing. The court may dispense with service on all or some of those persons…Where the court makes an order dispensing with service on all such persons it may proceed at once to make a provisional assessment, or, if it decides that a hearing is necessary, give appropriate directions. Before deciding whether a hearing is necessary, the court may require the receiving party to provide further information relating to the bill.”

As costs will be settled from the Protected Party’s estate, the above Practice Directions will apply. The bill of costs should be filed for assessment to enable the Costs Officer to consider the costs claimed and then direct if the bill should be served on the interested parties. It is then for the Conducting Fee Earner to decide who the assessment should be served upon.

If you have any questions please do not hesitate to contact myself, or a member of the COP Costs Team at Clarion at COPCosts@clarionsolicitors.com

Often Protected Parties are no longer able to live in their own homes, following which the Deputy will implement an unoccupied insurance policy. We have noticed that it is often a necessary requirement that the property has to be inspected in accordance with the terms of the policy itself. This could be weekly, fortnightly or monthly.

As a professional Deputy, any time attending the property would be charged for. Over recent months it has been noticed that sometimes this time is allowed by a Costs Officer, however, sometimes it is reduced and more often than not, the time is disallowed entirely.

We would argue that the time should be allowed, given that the policy would be void if the contractual terms were not being fulfilled. It is also worth noting that the property is a major asset and this must be protected in accordance with the Professional Deputy Standards, published by the Office of the Public Guardian:

“1d (6) Ensure appropriate buildings and contents insurance are in place and familiarise yourself with the terms of the policy.”

 1f (1) Regularly review the condition of the property and ensure it is adequately maintained.

When claiming attendance and travel time for such a task, we would recommend that the work is carried out by a lower grade fee earner, preferably a Grade D. It is necessary to bear in mind what time in respect of this task would be considered reasonable and proportionate.

It could also be suggested that the travel time be claimed at half the fee earner rate to reflect proportionality, however, please be aware that although you might think the work was necessary, it is still subject to the Costs Officer’s discretion on assessment.

Alternatively, an agent could be instructed to attend the property for insurance purposed.

If you would like any more information please contact Danielle Walker on Danielle.Walker@clarionsolicitors.com

Hourly Rates, exceptions to the rule and maximising recovery. Is the latter easier said than done?

When assessing Court of Protection Bills the general rule of thumb is to apply the SCCO Guideline Hourly Rates which are set out below.

In my experience Costs Officers are reluctant to allow for an increased rate, however there are some circumstances which could warrant the same. In order for a chance of being allowed a higher rate it would have to be shown that the circumstances were exceptional. An example of such would be a case that has been highly contested, with limited involvement of Counsel or whereby the fee earner has dealt with a high value, multi-million pound estate. Both of these scenarios would have required a high level of skill and expertise from an experienced fee earner. This was established in the case of Smith & Others (2007);

 “An hourly rate in excess of the guideline figures may be appropriate for Grade A fee earners in complex litigation… including the value of the litigation, the level of complexity the urgency or importance of the matter… would justify a significantly higher rate…”

Court of Protection work generally covers various aspects of work on all different levels of the spectrum, however in order to maximise recovery it could be suggested that the tasks undertaken be charged at an appropriate rate for that particular task. For example, if you are a Grade C/B fee earner and you are preparing non-routine correspondence, it could be recommended that the task be charged at a Grade D rate in order to be proportionate to the task in hand and allow for a lesser reduction. In my experience, I have noticed that this approach is being adopted by some firms of Solicitors. I believe that this reasonable approach would help to recover more of your costs as the Costs Officer would be less likely to reduce the time as it would have been already been reduced at the outset, leading to a lesser distortion of fees.

In my opinion, Costs Officers often reduce Grade A time the most and it is often where the Costs Office has felt that the task could have been undertaken by a lower grade fee earner, apart from where a Grade A has dealt with a difficult Protected Party or family member/s, investments and building projects. It could be argued that the reason for the reduction, is that the more straight forward tasks could be delegated or charged at a lesser rate. There does seem to have been an increase in the use of blended rates since the precedent set out in the case of Yazid Yahiaoui  (2014);

• Blended Hourly Rates – Master Haworth saw no reason to depart from his judgment stated In the matter of Louise Smith & Others however the application of “blended rates” may be suitable. Master Haworth directed:

“…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…”

In light of the above I would advise that you bear in mind the rates that you are charging your client and look for cases where the rate could be increased if necessary to do so or even apply a reasonable blended rate. Also I would suggest that you identify work that could be delegated to a lower grade fee earner and act upon this accordingly.

It can be a challenge to achieve a good recovery, however here at Clarion we are dedicated to the cause. We offer a complete service from advice, bill drafting right through to appeals.

If you require further information in respect of Court of Protection costs, please do not hesitate to contact Danielle Walker.