Can you recover costs for time spent communicating with in-house teams?

Often within a Deputyship, there is a necessity to instruct or obtain advice from specialists in other areas of law. Examples may include:

  • Where the Deputy is purchasing or selling a property on P’s behalf, which would warrant contact with the Conveyancing/Residential Property Team
  • Where P is assisted by directly employed carers, which may necessitate contact with the Employment Team, for example, in reviewing or amending contracts
  • Where a tax return is required, and the Deputy chooses to instruct the in-house Tax Team/Accountant to conduct a review of P’s finances, to prepare the tax return, and to advise on any liability
  • Where P is getting married, which may require input from the Family Team, for instance, in the drafting of a pre-nuptial agreement to ensure that P’s assets are protected

From the prospective of a Costs Draftsman, correspondence and meetings between the conducting fee earners in the Court of Protection Team and members of key in-house teams should be time recorded on the matter, and should be subsequently claimed when the Bill of Costs is prepared. This contact is essential in progressing P’s matter, and ultimately, if the in-house team had not been approached to provide input, then it is likely that an external provider would need to be instructed, with whom contact with would be allowed on assessment. Further to the recent decision in ACC & Others, Deputies should obtain three quotes for any work outside of their expertise before proceeding to instruct their in-house specialist, if it remains in P’s best interests to do so. You may also require further Court authority if the work is not covered by the Deputyship Order.

We recommend that all time is recorded for any contact and meetings with in-house teams, as this is largely recoverable upon assessment. For any telephone calls and meetings, it is beneficial to prepare a file note of the particular points discussed, to fully justify and warrant the contact. It’s also essential that it’s clear that those lawyers are from other specialisms, as if not, it may be viewed as any internal contact and could look like someone from the same team to the Costs Officer, which is more likely to be disallowed on assessment.

Ella Wilkinson is a Legal Apprentice in the Costs Department at Clarion Solicitors. You can contact her on 0113 288 5693 or by email to Ella.Wilkinson@clarionsolicitors.com

Departure from the rules – Public Guardian ordered to pay costs

In the case of JBN, Re [2019] EWCOP62 (23 December 2019), the Public Guardian made an application to the Court requesting the revocation of a Lasting Power of Attorney for property and financial affairs, which was made by JN two years prior, appointing DN, his son. The witness statement made by the investigator detailed that there were concerns that DN had not acted in JN’s best interests during the process of selling JN’s property, in which he had transferred the majority of the proceeds to himself. There were further concerns that JN and DN’s finances had become mixed, through the operation of a joint bank account. In conclusion, the Public Guardian expressed that DN’s actions had jeopardised JN’s future care costs, and they requested that the Court suspend the Lasting Power of Attorney and appoint an Interim Deputy.

Shortly afterwards, DN challenged the application, stating that JN had held the required capacity at all times, and that he had not committed any wrongdoing.

A further hearing was listed in June 2019, in which the Judge dismissed the Public Guardian’s application, restored the Lasting Power of Attorney appointing DN to act, and discharged the interim Deputy.

Following the hearing, DN sought the recovery of his costs from the Public Guardian, which he estimated to be in the region of £82,000.00. Ms Galley, acting on behalf of DN, argued that the Public Guardian had acted unreasonably in the matter, and that as such, the usual costs position as detailed in Rule 19.2 of the Court of Protection Rules (2017) should be departed from.

The Judge considered a number of issues surrounding the conduct of the Public Guardian, and noted that the apparent overriding issue in the matter was the lack of clarity as to JN’s capacity at the time of the property sale. The Judge ruled that as a result of the Public Guardian not considering the capacity evidence, that proceedings were brought which went beyond what was necessary. Furthermore, the Judge confirmed that the application made by the Public Guardian to obtain an Interim Order to suspend the Lasting Power of Attorney should have been made on notice to DN, as he was fully cooperating in respect of the queries raised as to his conduct.

The outcome of this matter was that a Costs Order was made, providing that the Public Guardian was not entitled to be paid their own costs from JN’s estate, and that they should pay 50% of the costs incurred by DN, including the costs of the final hearing. All costs incurred in the matter were to be assessed at the Senior Courts Costs Office.

Ella Wilkinson is an Apprentice Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at ella.wilkinson@clarionsolicitors.com, or on 0113 288 5693.

The court ratified past and future gifts from P’s estate according to the Official Solicitor’s submissions

In FL v MJL (By His Litigation Friend, the Official Solicitor) [2019] EWCOP 31, an application was made to the Court of Protection to ratify gifts that had been previously made on MJL’s behalf, and also for authority to make prospective gifts on MJL’s behalf. MJL’s brother, FL, was appointed as Deputy pursuant to the Orders dated 21 July 2008 and 23 January 2012. The Official Solicitor acted as MJL’s Litigation Friend in the proceedings.

MJL is unmarried and has no children, and also has four siblings, who each have their own children. His estate was valued in excess of £17 million. MJL receives care funding from the NHS, and as a result has an annual surplus of over £100,000.00.

A Statutory Will was executed in 2010, in which FL and RL, MJL’s siblings, were appointed as executors. The estate was to be divided up as follows; 60% split equally between MJL’s siblings, with the remainder of the estate to be divided equally between several organisations, including Oxfam, Amnesty International, and War on Want.

FL, the Applicant, made an application to the Court authorising the retrospective authorisation of previous gifts made by FL as Deputy, including Christmas gifts to MJL’s siblings, as well as gifts to the Labour Party, The Red Banner, and Charter 88, continuing the standing orders set up by MJL when had capacity. FL also requested authority to make gifts in the future to the taxable and charitable beneficiaries under MJL’s will, however the Official Solicitor did not agree with the proposals.

The Official Solicitor instead proposed that a gift of £1,184,387.00 be made from MJL’s estate, to be split equally between the siblings and the charitable beneficiaries in the ratio agreed in the Statutory Will (60% between the siblings, and 40% to the charities). They also proposed that gifts be made in the future from MJL’s surplus income in the same proportions as above. It was believed that the gifts would be beneficial to MJL in respect of reducing inheritance tax.

It was agreed between the parties that MJL could afford to make the proposed gifts. The Judge agreed with the proposals made by the Official Solicitor, and also noted that the standing orders set up by MJL when he had capacity should continue and were in MJL’s best interests.