At our Court of Protection Masterclass yesterday, Master James spoke insightfully about the service of Court of Protection Bills of Costs on interested parties. She confirmed:

“Run-of-the-mill Assessments generally relate to general management charges appointment of Deputies etc. Since the advent of the Mental Capacity Act 2005, it is increasingly common for family members to challenge decisions such as the appointment of a Deputy, or the registration of an Enduring Power of Attorney.

The Court hearing these applications has the usual armoury of costs orders at its disposal and in a number of cases it may make a costs order against the interested party or Applicant. In other cases, it will simply order the Deputy’s costs to be paid from the estate of P.

Other situations arise where P dies before a Deputy’s bill for general management charges or other matters has been assessed. In all these situations, often when the bill is lodged, it is clear that there are objections from family members, unsuccessful applicants to the Court, or beneficiaries under the will or intestacy of P, to the costs that are claimed.”

It’s important to note that Master James said in her notes “in all these situations, the Deputy or party seeking payment must make these objections clear when lodging their bills for Assessment. In these circumstances, the bills are usually referred to a Master for a Direction to be made pursuant to CPR Rule 47.19A (3) – see link to Part 47 at page 3 above:

“The Court may direct that the persons seeking Assessment may serve a copy of the request on any person who has a financial interest in the outcome of the Assessment”.

What is or is not a “financial interest” is explained in CPD Part 47 paragraph 18.2; here is a link to the Practice Direction:

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-47-procedure-for-detailed-assessment/practice-direction-46-costs-special-cases2#18.1

She proceeded to confirm, “there have been cases proceeding before Costs Officers and/or a Master where it is not apparent that there is an interested party with the result that a Final Costs Certificate (FCC) may be issued without the full knowledge of who the relevant parties are.

In some cases, the FCC has subsequently had to be rescinded and the process of Detailed Assessment restarted at considerable cost either to the estate of P, Solicitors or Deputies.”

We recommend that any interested parties are highlighted for the SCCO’s attention in your letter to the SCCO, enclosing your bill of costs.

If you have any questions, please do not hesitate to contact the COP Costs Team at Clarion, COPCosts@clarionsolicitors.com or call 0113 336 3402.

It is extremely common for Deputies to be involved in ongoing litigation claims for Protected Parties. Deputies often become involved in interim payment applications and are usually asked to disclose details of the Protected Party’s affairs to the litigation solicitor to assist with the Schedule of Loss and other documentation. The main question that needs to be answered however is whether these costs can be claimed within the general management bill of costs.

Unfortunately, the answer is no…

Master Haworth considered this and made an unpublished judgment on 3 June 2014 in relation to civil costs within Court of Protection matters. Master Haworth stated that:

“The principal point at issue was one that appears to be coming increasingly common in COP general management bills, namely the costs incurred by the Deputy in relation to ongoing litigation. In particular, requests being made by the litigation solicitor for information relating to the affairs of the Protected Party and more particularly in relation to possible interim payment applications. The view I take is that where the Deputy is being asked to provide information and/or schedules and/or documentation to support an interim payment application in ongoing litigation these are not general management charges.”

Master Haworth directed the Deputy to withdraw their bill of costs and to re-submit a new bill of costs which did not include the litigation costs to allow him to solely assess the general management costs that had been incurred.

It is advisable that the Deputy’s costs which relate to the Protected Party’s litigation claim are not included within general management bills. Costs which relate to the litigation claim should be recovered within the litigation bill of costs. The Deputy should therefore outline their costs to the litigation solicitor to ensure that the costs are remunerated correctly.

If you require any further advice or assistance in relation to your Court of Protection costs, please do not hesitate to contact the Clarion Costs Team on COPCosts@clarionsolicitors.com or 0113 246 0622.

Mr Justice Charles has issued helpful guidance in relation to how to facilitate the contributions of Protected Parties in various circumstances throughout COP proceedings.

The practical guidance is provided to suggest how practitioners and professionals in the field might consider encouraging and promoting the participation of the Protected Party in proceedings in the COP. The guidance states that it is primarily directed towards health and welfare cases in the Court, however, it is likely to be of assistance in some property and affairs cases.

The guidance includes identifying the Protected Party’s needs within the Court process, considering the Protected Party’s wishes and feelings during proceedings, the attendance of the Protected Party at hearings, meeting with the Judge, giving information or evidence to the Court and acting as a Witness.

The Protected Party’s best interests must be considered at each stage of proceedings and accommodating the Protected Party’s needs, whilst practically being realistic and proportionate, are key points to consider throughout.

The guidance may be of benefit to practicing Deputies and other professionals acting for vulnerable people in the Court of Protection.

More information and access to the guidance can be found at the link below:

http://www.familylaw.co.uk/system/froala_assets/documents/1245/Practice_Guidance_Vulnerable_Persons.pdf

In the Court of Protection, most Orders will contain a clause entitling the professional Deputy to be paid for their work. This clause therefore entitles you to take fixed costs, or have your costs assessed, subject to the terms of the Order.

We therefore wanted to explain the basis of assessment, to clarify how your costs will be paid. The Civil Procedure Rules, Part 44.3 states that when assessing costs on the Standard Basis, “only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred.”

Upon assessment, your costs are subject to the Costs Officer’s discretion and as a result, it is crucial that you evidence the work that you have done.

Recently, new Professional Deputy Costs Guidance has been released by the Office of the Public Guardian and the SCCO, which states that where evidence of the work carried out is not on the file (by way of file notes) the time spent could be disallowed. The Deputy must “resolve any doubt as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.”

 In order to show that your costs were reasonably and proportionately incurred, we recommend that you prepare file notes for the work undertaken, detailing the following:

 

1. What you did
2. How long it took you
3. Who did the work
4. When you did it
5. Why you did it
6. What action needs to be taken

 

Points 5 and 6 are particularly important in order to resolve any doubt in the Costs Officer’s mind. If you’re attending upon the Protected Party for the third time that year, tell the Costs Officer why it was necessary and what the next steps are to progress the matter. If you do not progress the matter in any way or it was unnecessary for you to do that work, it is unlikely that you will get paid.

If you have any queries about how to appeal an assessment or any general questions, please do not hesitate to get in touch and we would be more than happy to assist you. Please contact CopCosts@clarionsolicitors.com or call 0113 246 0622.