Author: Laura Sugarman

A summary of MH v CH [2026] EWHC 238 (SCCO)

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MH asked the court on 6 May 2025 to set aside a provisional assessment order made on 29 April 2025 (the “PA Order”). This all started with a long-running Court of Protection dispute, where MH was told to pay half of CH’s costs (by order dated 15 December 2023).

A Bill of Costs for £19,233.93 was sent to MH on 1 November 2024. MH replied on 22 November 2024 with his Points of Dispute, which included several documents. CH replied back on 13 December 2024. Then, on 15 April 2025, CH sent the N258 Bundle to the court—but later admitted (via their representative, Mr Cruise) that some important documents were accidentally left out. These included the annotated Bill of Costs, the Note in Relation to Points of Dispute, and MH’s open offer.

Because these documents were missing, the provisional assessment on 29 April 2025 went ahead without all the information. This made it hard for the judge to understand MH’s objections, but the PA Order was still issued that same day. MH then applied to have the order set aside.

The case came back to court for a hearing on 24 June 2025. At that hearing, a question came up: was the provisional assessment order final, or was it still up for review during the 21-day period set out in CPR 47.15(7)? The judge decided to pause things and asked both sides to send in written arguments, which they did in July 2025.

What Was MH’s Argument?

MH said the PA Order should be set aside because the N258 Bundle didn’t include all the required documents—specifically, the open offer and the full Points of Dispute. MH argued that this meant the order wasn’t valid.

MH also asked the court to look at:

  • Whether leaving out these documents was contempt of court or misconduct (to be decided later).
  • Whether a previous payment meant the costs had already been agreed (also to be decided later).

MH pointed out that there are other rules in the Civil Procedure Rules (CPR) that let the court set aside orders if things haven’t been done properly.

What Did the Judge Decide?

The judge looked at whether to use the court’s general powers (CPR 3.1(7)) or the specific rules for provisional assessments (CPR 47.15(7)). Here’s what was decided:

  • CPR 47.15(7) is for challenging specific items in a provisional assessment, usually by asking for an oral hearing within 21 days.
  • CPR 3.1(7) can be used for bigger procedural issues—like when the process hasn’t been followed correctly.

The judge found that not including MH’s full Points of Dispute was a serious procedural mistake. Because of this, the provisional assessment wasn’t carried out properly, so the usual review process didn’t apply. Instead, the court’s general powers could be used.

The judge also noted:

  • CH admitted the mistake.
  • The assessment was done without all the facts, which wasn’t fair.
  • MH acted quickly to raise the issue.
  • The error was serious, especially since MH couldn’t control what was filed.

What’s Next?

The judge set aside the PA Order, saying this was an exceptional situation. The case will now move forward as a detailed assessment, where all the remaining issues—including questions about contempt, misconduct, and whether the costs were already agreed—will be sorted out at the next hearing.

This case is a clear reminder of how important it is to follow the rules and make sure all required documents are submitted to the court. Missing paperwork can lead to confusion, delays, and even orders being set aside. By taking care to comply with the process and provide everything needed, this helps ensure fairness for everyone involved and keep cases moving forward smoothly.

For more information please contact Laura Sugarman – Laura.Sugarman@Clarionsolicitors.com

Re ACC and Others: Guidance from the OPG

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On 9 January 2026, the Office of the Public Guardian published new guidance on Re ACC & Others, setting out their position on this judgement. This guidance explains how Deputies should apply the Re ACC and Others judgment from the Court of Protection and what actions the Office of the Public Guardian expects Deputies to take to remain compliant.

 

For background, this judgement sets out positions on issues concerning the authorities a professional Deputy will need to obtain legal services and how to manage any conflicts of interests.

 

The judgement sets out the position on the general authority of a Deputy. This is defined as the common or day to day tasks that are required to be undertaken to administer P’s estate effectively. Deputies have legal authority to act on behalf of someone who lacks capacity, but that authority is defined strictly by the court order that appointed them. The Re ACC judgment clarified what Deputies can and can’t do without asking the court for extra permission. The guidance explains how Deputies should act within those rules and manage legal work or potential conflicts of interest.

 

 

Deputies automatically have general authority to carry out everyday financial tasks if the court order includes those powers. That generally covers things like:

 

  • Managing bank accounts and investments
  • Letting or maintaining property
  • Preparing tax returns
  • Ensuring care costs are paid

 

 

However, this only applies as long as the activity is within the scope of authority granted by the court order. Deputies acting outside their authority do so at personal risk. Tasks which fall out of the general authority as outlined in the Deputyship Order template include:

 

  • Purchase of freehold or leasehold property
  • Sell, lease or charge freehold or leasehold property
  • Appoint an investment manager
  • Use P’s funds to provide for others
  • Make gifts to charity
  • Obtain a grant of representation
  • Execute or sign deeds or documents

 

It is important to note that unless specific authority is granted in the Deputyship Order, a property and affairs Deputy does not have authority to perform any of the above tasks. If a task isn’t expressly allowed by the Court Order, you must apply to the court for specific authorisation.

 

Litigation

 

Deputies cannot initiate litigation on behalf of P without specific authorisation from the Court of Protection. If a Deputy has specific authorisation to carry out certain tasks, they have authority to engage up to the point of receiving the Letter of Response, but no further.

 

If the contentious litigation may relate to personal welfare decisions, a Deputy cannot initiate litigation but can seek directions from the Court of Protection. Further, the general authority in a property and affairs Deputyship Order does not include appealing against a decision in an Education, Health and Care Plan. This is because this is a personal welfare issue.

 

Whereby urgent litigation is required, the Deputy may proceed at risk but should seek retrospective authorisation. However, this is not guaranteed to be given.

 

Conflicts of Interest

 

This guidance confirms the position on conflicts of interest should a Deputy wish to instruct a member of their own firm. To do so, prior authorisation from the Court must be obtained to carry out this work. If specific authority has not been granted, a Deputy should obtain three competitive quotes from suitable providers and choose the provider that best meets the person’s interests.

 

If these costs are expected to exceed £2,000 plus VAT, authority from the Court is required.

 

Position of the Office of the Public Guardian

 

The Office of the Public Guardian has a statutory duty to supervise all court appointed Deputies. They expect all Deputies to clearly demonstrate they have authority to undertake the work, show how conflicts of interest have been managed and include relevant decisions with respect to Re ACC in the annual Deputyship report. If a Deputy wishes to instruct a member of their own team, they must apply to the court for authorisation whereby projected costs are likely to exceed £2,000 plus VAT.

 

If a case has completed prior to the release of this judgement, the Office of the Public Guardian does not expect applications for retrospective authority to be necessary. However, the Office of the Public Guardian takes the stance that the conflict of interest set out in Re ACC extends to any instance whereby the Deputy is considering utilising services for P from their own firm and this constitutes a potential conflict of interest.

 

In Summary

 

This new guidance reinforces the importance of staying within the authority granted by the court, seeking specific court authorisation for litigation or other high value actions, managing conflicts of interest transparently and reporting properly to the Office of the Public Guardian about decisions made on behalf of P.

 

If you have any questions or would like further information about any of the above, please contact Laura Sugarman on laura.sugarman@clarionsolicitors.com

 

 

 

 

 

Fixed Costs and Remuneration of Professional Deputies

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On 18th June 2025, the Office of the Public Guardian issued new guidance in relation to fixed costs and remuneration of professional Deputies. The purpose of the guidance is to set out the general principles regarding fixed costs and the Public Guardian’s position on issues relating to fixed costs.

As you will be aware, rule 19.13 of the Court of Protection Rules confirms that Deputies can be remunerated for costs they incur when performing their duties as Deputy. The Court may order that the Deputy is allowed to take fixed costs. These are outlined in Practice Direction 19B (PD19B), which was recently updated, on 1st April 2024. Whereby the management period ended before 1st April 2024, the rates set out in the previous PD19B would apply, however if the period covered by the fixed costs ends on or after 1 April 2024, the rates outlined in the latest version of the Practice Direction apply. Generally speaking, a management period would run on an annual basis, however this guidance confirms that if the period is less than a year (for example if there is a change in Deputy or P passes away) the fixed costs claimed should be apportioned accordingly.

It is important to ensure that if you want to have your costs assessed but the Court Order only allows for fixed costs, the Deputy will not be allowed to take any costs higher than fixed costs as per the case of The London Borough of Enfield v Matrix Deputies Ltd & Anor. Our advice would be to apply to the Court of Protection to have the costs clause varied to allow for the costs to be assessed in these circumstances.

The guidance also reiterated the definition of net assets as per the case of Penntrust Ltd v West Berkshire Council & Anor. This case confirms that net assets is the total assets minus total liabilities. This includes any property owned by P, regardless of if they are currently residing in the same.

Whereby P has net assets of less than £20,300, the Deputy will not be permitted to have their costs assessed. Instead, they can take an annual management fee not exceeding 4.5% of P’s assets. The guidance also confirms that if there is a pending settlement which would take P’s assets significantly above £20,300, the Deputy should apply to the Court of Protection to seek authority to delay taking costs until the settlement funds have been received. This is a move away from previous guidance which has stated that the Deputy can only have costs assessed if P has assets above the threshold on the anniversary of the Court Order.

Further guidance has now been issued in relation to tax returns. Fixed costs can be taken for the completion of a basic tax return and complex tax return. It has been difficult to determine what would account for a complex tax return and therefore this guidance is very welcomed. The guidance states that:

‘PD 19B defines a basic tax return to cover cases where P’s income is derived primarily from bank or NS&I interest and taxable benefits, discretionary trust or estate income. A complex tax return may be defined as one which also includes income form more complex investments including stocks, shares and bonds, rental property, business income and foreign property. Public authority deputies may charge up to £89 for a basic tax return as set out at paragraph 18 of Practice Direction 19B to include bank or NS&I interest and taxable benefits and may charge an amount not exceeding £89. They may charge P for the completion of more complex tax returns as a specialist service P would be expected to play for if they retained capacity.’

Guidance has also been provided in the event of P’s death. The Public Guardian recommends that the Deputy agrees any costs with the personal representative of the administrator of P’s estate. Further, the guidance states that the Deputy is not permitted to take final costs after P’s death, if the estate has not yet been settled.

If you have any questions, please get in touch with Laura Sugarman for further information – laura.sugarman@clarionsolicitors.com.

Leicestershire County Council v P & Anor [2024]

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This recent case relates to a decision made regarding whether P held capacity to make decisions regarding her care and liaison with other individuals.

History

By way of background, P has a dissociative disorder which refers to mental health conditions that involve experiencing a loss of connection between thoughts, memories, feelings, surroundings, behaviour and identity. P has experienced complex psychological trauma and experts have previously testified that P’s ability to make decisions often fluctuates, especially during dissociative episodes.

Therefore, the circumstances whereby P experiences a dissociative episode needed to be addressed and considered. The Court was required to consider P’s loss of capacity during her episodes and whether it was in P’s best interests to allow the carers to intervene and assist with the decision making process during these periods.

Legal Framework

With regards to the legal framework of this case, the Vice President made the decision that P did have capacity when she was not experiencing a dissociative episode however, it was further suggested that the legal framework in the Mental Capacity Act 2005 needed to be relied upon to determine whether assistance and intervention was required to make decisions during P’s episodes.

Section 5 and 6 of the Mental Capacity Act 2005 framework provides: “General authority to those caring for P who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done. Using this framework will have the advantage that decisions are taken contemporaneously both as to capacity and best interests, having up to date information on matters such as P’s wishes and are more appropriate to guard against such infrequent occasions as in this case”

Conclusion

In conclusion, the Court was unable to make an anticipatory declaration following a detailed review of all evidence, as it was difficult to conclude when P had dissociated to the extent that she no longer held the ability to make decisions regarding her care and contact with other individuals.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com

New Fixed Costs in COP – what you need to know about PD19B and the changes

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This month, it has been announced that there will be an increase to the fixed costs following a revised publication of Practice Direction 19B, applicable from 1st April 2024 for COP practitioners. This is a welcome increase, given that the previous fixed costs were deemed to be outdated, particularly in light of the recent increases to hourly rates as a result of PLK, GHR 2021 and GHR 2024.

The new fixed costs are as follows:

WORK CARRIED OUTPREVIOUS FIXED COSTS ENTITLEMENT (plus VAT)NEW FIXED COSTS ENTITLEMENT (plus VAT)
Application Work9501204 
1St GM year16702116
2nd and subsequent GM years13201672
Deputy Report265 336
Basic Tax Return250 317
Complex Tax return600 Reasonable/ or three quotes (ACC)
ConveyancingMin 400 max 1670 Reasonable /or three quotes (ACC)
Interim paymentsUp to 75% of WIP, raised by way of three quarterly billsUp to 75% WIP for the year or 75% of OPG105 estimate. whatever is lower. 

The increases to most of the fixed costs represents a 26% rise from the previous available figure.

As well as the increase to fixed costs, the threshold for hardship cases has also increased. This was previously £16,000 but this has now increased to £20,300. Therefore, if P has less than £20,300 in assets, the Deputy will be unable to have their costs assessed but instead will be limited to 4.5% of P’s assets.

The changes to interim payments is a welcome shift which will help cash flow for firms, as payments on account are not limited to quarterly, therefore billing monthly may be preferred so long as the OPG105 estimate is in line with the WIP incurred.

This month has also seen an announcement regarding the increase in court fees. Following a consultation, the government has decided to proceed with increases of 10% to 172 of the 202 fees that were proposed in the initial consultation. This will directly impact COP Practitioners. The court fee for requesting a detailed assessment has increased from £87 to £96, the court fee to appeal against a COP costs assessment decision has increased from £70 to £77 and the court fee for a request to set aside a default costs certificate has increased from £65 to £72.

There has also been an increase in court fees for Court of Protection applications. These have increased from £371 to £408. The court fee for appealing has increased from £234 to £257.

It is incredibly important that COP practitioners update their client care paperwork to reflect the new fixed costs if they are sought, in addition to the new court fees.

If you have any questions about any of the above, please feel free to contact Laura Sugarman at Laura.Sugarman@clarionsolicitors.com

Guideline Hourly Rates in the Court of Protection

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As you may be aware, the Master of the Rolls has accepted the recommendations of the Civil Justice Council Costs review. As per the recommendations, the Master of the Rolls has confirmed that ‘the 2021 Guideline Hourly Rates will be uplifted for inflation from 1 January 2024 in accordance with the Services Producer Price Index.’ The guideline hourly rates will then be uplifted annually by the Services Producer Price Index.

The new hourly rates are as follows:

The increase is approximately 6-7% depending on your geographical location.

What impact will the new Guideline Hourly Rates have on Court of Protection?

The new guideline hourly rates will come into effect from 1 January 2024. In order to ensure that COP Practitioners are able to claim these within bills, it is imperative that all retainer letters and client care letters are updated to reflect the new hourly rates. Without this paperwork, the practitioner will be unable to claim the new hourly rates as they would be in breach of the indemnity principle.

The indemnity principle states that ‘a successful party cannot recover from an unsuccessful party more by way of costs than the successful party is liable to pay his or her legal representatives’. When applied to Court of Protection costs, this means a Deputy cannot claim costs higher than those stated in their client care letter or retainer letter. Therefore, we recommend that all paperwork be updated to reflect the new guideline hourly rates in advance of 1st January 2024.

Please be aware that the retainers cannot be backdated, and therefore the rates cannot be claimed prior to 1 January 2024. It is also the case that if the client care letters are updated post 1 January 2024, the guideline hourly rates cannot be claimed prior to the date of the updated client care letter.

If you have any queries you can contact Laura Sugarman at Laura.Sugarman@clarionsolicitors.com for further information.

Northern Care Alliance NHS Foundation Trust v KT & Ors [2023] EWCOP 46

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This recent case involves an application made by the NHS Trust seeking a declaration that it was lawful for KT, who suffers from severe brain damage following a large left-parietal intracranial haemorrhage, to receive end of life care only.

Background:

In February 2022, KT suffered a large left-parietal intracranial haemorrhage whilst he was undergoing dialysis for end-stage liver failure. KT was diagnosed with end-stage liver failure in 2017 and the same eventually resulted in severe brain damage. During 2022, KT’s treatment was administered at Manchester Royal Infirmary but he gradually became less responsive and further developed a right-sided weakness. Following a CT scan which was performed on KT, it was determined that he had suffered a large haemorrhage to the left temporoparietal region of his brain and therefore, a decision was made to transfer KT to a specialist hospital in order to administrate emergency surgery. KT underwent the surgery and is now receiving life-sustaining treatment, including haemodialysis and Clinically Assisted Nutrition and Hydration (CANH). A medical assessment conducted outlined that KT is in a “prolonged disorder of consciousness” whilst residing as an inpatient at a specialist neurosurgical unit. The medical consensus also established that KT had no awareness and no scope for rehabilitation. It was suggested that he may have capacity to experience discomfort, distress and some ability to be soothed by his environment but that this did not equate to awareness. In addition to chronic Stage 5 kidney failure, KT also has co-morbidities, Type 2 diabetes mellitus, diabetic retinopathy and hypertension which has reduced his life expectancy significantly. Following KT’s surgery, the medical experts advised that he would be heavily dependent on haemodialysis as the same needed to be administrated three times a week to keep him alive. However, during two meetings between KT’s medical team and family, on 2 September 2022 and 11 November 2022, discussions were held regarding the future management of KT’s treatment. The medical team advised that safely dialysing KT had become increasingly challenging as his blood pressure tended to drop during dialysis which carried a risk of further brain injury, cardiac arrest, or heart attack. Unfortunately, KT’s family were unable to reach an agreement with the medical team as to what would be in his best interests.

Therefore, the NHS Trust sought a declaration that it was lawful to receive palliative care only to ensure that towards the end of KT’s life, he remained comfortable. Should this course of action be followed, it was likely that KT would die of renal failure within two weeks. The decision to bring the declaration was difficult, as KT’s family disagreed and sought to persuade the Court to compel the Trust to continue treatment on KT’s behalf.

Legal Framework:

In terms of the legal aspect of KT’s case, it was determined that there was no evidential issue between the parties that KT lacked capacity to make his own decisions, under the Mental Capacity Act 2005, in relation to medical treatment. The presumption of capacity has been displaced in this case. Therefore, the Court was required to consider KT’s best interests in relation to Section 4 of the Mental Capacity Act 2005 and to conclude whether proceeding with medical treatment was most beneficial.

Conclusion:

The Court concluded, after exploring all the available options, that continued treatment would cause additional harm to KT without delivering benefit and therefore, it was not in his best interests to continue administrating treatment. However, the Court did delay the ending of KT’s treatment for 21 days to enable his family to make arrangements to say their goodbyes.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

Civil Justice Council Report on Costs and the Impact on Court of Protection Costs

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Yesterday, the Civil Justice Council publishes their costs consultation responses and recommendations: https://www.judiciary.uk/civil-justice-council-costs-review-final-report/

Four main areas were considered; costs budgeting, guideline hourly rates, pre-action and digitisation and consequences of the extension of Fixed Recoverable Costs, with guideline hourly rates being the main area that had a potential to impact Court of Protection costs.

With respect to Guideline Hourly Rates, the majority of respondents found that the Guideline Hourly Rates had a useful role both as a starting point for summary and detailed assessment and indicate to the market generally the rates that would be considered reasonable by the Courts.

Almost all respondents believed that the Guideline Hourly Rates should be frequently updated as to ensure they serve their commercial purpose. However, views were mixed as to the frequency of which they were updated.

Abandoning the Guideline Hourly Rates was considered, however this was largely disagreed with by the respondents, with an argument that it would lead to uncertainty and cause difficulties for judges.

Various changes were considered, particularly as many respondents applying Guideline Hourly Rates outside of London noted that these were set considerably lower than the London hourly rates. A strong view was set that guideline hourly rates for London and elsewhere should not be different. Another suggestion was that the bands should reflect the complexity of the work as opposed to the location where the work was carried out.

It was recommended that the Guideline Hourly Rates be retained and in the short term, measures should be taken to create a new band for complex, high value and commercial work regardless of the location where the work was carried out. Also recommended was that Counsel’s fees should be assessed by reference to a guideline hourly rate. Further, when considering a departure from the Guideline Hourly Rates, the test being applied should be clearly stated.

Longer term recommendations included retaining the rates for the next five years, with a view to carrying out a Detailed Review at the end of the five years. Also recommended was a working group to ensure a satisfactory methodology can be identified and put in practice. Index linking was recommended to be carried out annually, in order to remove the need to carry out a form of detailed review on a regular basis. This will reflect the position of the market.

Overall, the immediate impact of the review is minimal to Court of Protection costs, however the Civil Justice Council will now consider how these recommendations are taken forward.

If you have any questions, please contact Laura Gillin at Laura.Gillin@clarionsolicitors.com

E-Bill FAQs – How does the new Court of Protection E-Bill work?

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From 1 November 2022 the COP E-Bill came into force. This will look slightly different to the Bills that COP practitioners are used to and will include some additional information including various categories and a separate part for the inclusion of P’s assets. We recently participated in a successful pilot scheme and will be submitting all Bills from 1 November 2022 in this new format.

Below are some common queries about the E-Bill and how to resolve these.

How does the Deputy or person authorised by the firm to sign on behalf of the Deputy certify the Bill of Costs?

The Deputy or authorised person is still required to certify the Bill as before. However, on the new E-Bill format the legal representative’s name can be typed or printed into the ‘Certification’ tab. Please be aware that the ‘Post Assessment Certificates’ section is only to be certified once you are requesting the Final Costs Certificate following assessment.

Where will information relating to any interim payments taken be entered?

Similarly to the PDF Bills, the E-Bill requires you to disclose any interim payments taken on account of costs for the period. This information should be entered on the ‘Certification’ tab in the first box.

How will the new E-Bill be E-filed using the SCCO portal?

The process for E-filing the Bill of Costs remains very much the same. You are still required to submit the certified Bill, Order, certified N258B and disbursement evidence as before, but use the new options on the E-filing service beginning ‘COP E-Bill’. If the Bill and N258B are not certified by an authorised person, then the submission will be rejected by the SCCO.

What will happen to the E-Bill on assessment?

Once the E-Bill is received and approved by the SCCO, it will be allocated to a Costs Officer who will review and assess in the usual way. The Costs Officer is able to make changes to the Bill where appropriate and the E-Bill will recalculate this automatically. The Costs Officer will use a series of codes and mark these on the E-Bill so that you can determine the reasons given for the reductions.

How will the E-Bill be returned following assessment?

The E-Bill now includes a contact email address section on the front sheet, which should be completed when drafting the Bill. Following assessment, the E-Bill will be sent via email to the address provided.

How should the E-Bill be served on interested parties where required?

If you are required to serve the Bill on interested parties then this should be provided to them as a PDF version of the E-Bill. Please request this from your Costs Draftsperson who would be more than willing to assist.

How can I ensure my E-Bill is compliant with new the new requirements?

There are some new requirements when using the E-Bill format that are likely to cause some minor issues if they are missed. Below are some ways in which you can assist your Costs Draftsperson in ensuring the E-Bill is ready to be submitted to the SCCO.

SCCO reference – there is a section on the front sheet that relates to the unique SCCO reference for each matter. This can be inputted prior to submission to the SCCO to help avoid any rejections based on the matter already existing. Please provide the SCCO reference to your Costs Draftsperson if known.

OPG105 estimated costs – there is an increased emphasis on providing the OPG105 estimated costs for the period when using the E-Bill. Please provide the OPG105 costs estimate to your Costs Draftsperson so that this can be included in the Bill.

P’s assets – the E-Bill now includes a specific section relating to P’s assets so that the Costs Officer can consider these. Please provide this information to your Costs Draftsperson and they will include it in the Bill accordingly.

Fee earner rates – please provide a breakdown of the fee earners who have worked on the matter and their date of professional qualification so that these can be included in the Bill.

Amendments – if you require any amendments to the E-Bill please consult your Costs Draftsperson. The E-Bill uses complex algorithms to calculate the totals within the Bill and any changes made could affect these and corrupt the Bill. We therefore recommend that you ask your Costs Draftsperson to make any amendments you require, rather than attempting this yourself, as it could cause issues with the E-Bill later down the line.

The introduction of the COP E-Bill will revolutionise the COP sector and should have a positive impact on assessment times and also result in less administration time following assessment, as the Bill is automatically recalculated in this format.

Additional information on E-Bills can be found here: https://www.judiciary.uk/guidance-and-resources/electronic-bills-in-court-of-protection-cases-pilot-in-the-senior-courts-costs-office/

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com

When is a Deputy Entitled to Have a Bill of Costs Assessed by the Senior Courts Costs Office?

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Professional Deputies are entitled to take costs for the work that they have carried out throughout a management year. This must be completed in accordance with the rules set by the Court of Protection, Senior Courts Costs Office, and Office of the Public Guardian. The Deputy will most likely opt for their costs to be assessed by the SCCO, and otherwise they could take fixed costs.

When a Deputy is appointed, the Court of Protection make a Court Order outlining the authority of the Deputy. One such authority is the Deputy’s entitlement to be paid in respect of the work done on behalf of P. Under the ‘Costs and expenses’ section of the Court Order, the Costs Judge will outline how the Deputy should be remunerated for their costs, which is typically either fixed costs or detailed assessment by a Costs Officer.

If the Deputy would like to have their costs assessed, as the time they have spent outweighs the amount allowed by fixed costs, then they must have authority within the Order to do so.

Below is an example of a costs clause within an Order that grants authority for the Deputy to receive fixed costs only:

            ‘The Deputy is entitled to receive fixed costs in relation to this application, and to receive fixed costs for the general management of the Protected Party’s affairs.’

As a reminder, some of the key current fixed costs available are set out in Practice Direction 19B of the Court of Protection Rules (2017), and are as follows:

  • £950.00 + VAT for a Deputyship application
  • £1,670.00 + VAT for the first year of general management of P’s affairs
  • £1,320.00 + VAT for second and subsequent years of managing P’s affairs

You can find the full Practice Direction here, if you require further information: https://www.judiciary.uk/publications/fixed-costs-in-the-court-of-protection/

Below is an example of a costs clause within an Order which gives authority for the Deputy to have their costs assessed by the SCCO, or to take fixed costs if they prefer:

            ‘The Deputy is entitled to receive fixed costs in relation to this application, and to receive fixed costs for the general management of the Protected Party’s affairs. If the Deputy would prefer the costs to be assessed, this order is to be treated as authority to the Senior Courts Costs Office to carry out a detailed assessment on the standard basis.’

Where a Court Order provides for detailed assessment of the Deputy’s costs, Deputies may decide to take fixed costs in lieu of detailed assessment, but this is not mandatory. If you have authority for the assessment of costs in your Order and you will exceed the fixed costs amount, we recommend that you opt for assessment instead, as it is very likely that you will recover more than the fixed costs amount.

If a Deputy has incurred more time than allowed under the fixed costs amount when administering P’s affairs, but only has authority to take fixed costs, then they may choose to apply to the Court of Protection for an amended Court Order granting authority to have their costs assessed.

If a Court order does not grant authority for costs at all, then the Deputy can apply to the Court of Protection to amend the Court Order to include a clause for costs. Otherwise, the Deputy would have no authority to charge for the work that they have completed.

For further information, please contact Lewis.Grant@ClarionSolicitors.com

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com