New guidance issued on facilitating the participation of a Protected Party and vulnerable persons in Court of Protection Proceedings

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

Proportionality in the Court of Protection

You will have all heard about the ‘Jackson Reforms’, which so far, have not been something that Court of Protection practitioners have had to be too concerned about – until now.

As part of the ‘Jackson Reforms’, a new test of proportionality was introduced. Proportionality now trumps reasonableness and ‘necessity’. Even if a cost was reasonable and was necessary, it can be disallowed on the basis of proportionality. The purpose of this reform was to tackle disproportionate claims for costs.

The case of BNM and MGN Limited (see https://clarionlegalcosts.com/2016/06/10/who-needs-fixed-costs/#more-876) is an interesting case to consider in relation to the new test of proportionality, where a bill of costs was reduced from £167,389.45 to £83,964.80 on the basis of proportionality. This is one of the first cases to really demonstrate the power of CPR 44.3 (2) (‘Jackson test of proportionality’), which states:

Where the amount of costs is to be assessed on the standard basis, the court will –

(a) 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; and

 (b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

 This ‘Jackson test of proportionality’ is something that has primarily been having an impact on civil and commercial claims for costs, however, we (Court of Protection Costs team at Clarion) are now starting to see the new test being applied to Court of Protection cases.

Under the new test, the Senior Courts Costs Office must assess a bill of costs (line by line) and determine what is reasonable. Thereafter, the new test of proportionality can be applied. The Costs Officer has the power to stand back and ask ‘was this a proportionate sum to incur on this matter taking into account all the factors relating to the case’, and in some instances, the answer can lead to significant further reductions to a Bill of Costs.

Going forward, we believe that this is something that will have an impact on Court of Protection cases. Not only will your costs be assessed based on what was reasonably incurred, but the SCCO can also consider other factors, such as the value of the Protected Party’s estate and other non-monetary influences when considering whether the assessed (reasonable amount) is proportionate.

We considered a recent assessment whereby the Protected Party’s estate was worth approximately £46,000.00. The Deputy submitted a bill of costs totalling £12,200.00. The bill was provisionally assessed at £11,500.00, but was thereafter limited to £9,000.00 due to the issue of proportionality, as a result of the value of the estate.

There is no guidance as to what is proportionate in these cases, however, the Costs Officer has the authority to determine what is proportionate at their own discretion. It will be interesting to see how this is applied going forward and whilst this area is still developing, requests for reviews or appeals may be appropriate. Albeit the financial position of the Protected Party is key, other factors such as the conduct of the Protected Party, the complexity of the matter and any key elements (international and business) may be influential in justifying your claim for costs.

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

Getting paid in the COP

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.

Professional Deputy Costs Guidance

You should all now be aware that the Office of the Public Guardian and the SCCO have issued some guidance in respect of Professional Deputy Costs. In summary, here’s what you need to know:

  1. The SCCO Guideline Hourly rates will be allowed, except in exceptional circumstances
  2. Routine tasks such as arranging payments or checking bank statements should be delegated to a Grade D fee earner at best. There are also times when use of a non-fee earner would be considered appropriate
  3. Three minutes will generally be allowed for arranging payments of any kind
  4. One home visit per annum is appropriate, but more may be acceptable dependent on the needs of the case. Excessive contact with all parties should be limited
  5. Work in respect of welfare is not recoverable, without permission from the COP
  6. One senior fee earner will be allowed at investment strategy meetings
  7. File notes must be present to evidence the work carried out
  8. Office overheads ie. Research, perusing incoming correspondences, internal communications and supervision are not recoverable
  9. Three minutes will be allowed for short, routine correspondences
  10. Litigation costs should be appropriately claimed within the litigation proceedings
  11. Grade D rates will be allowed for the preparation of the bill of costs
  12. In hardship cases (net assets below £16,000.00), professional costs must be limited to 4.5% of the Protected Party’s estate per annum
  13. On the client’s death, professional costs should be agreed with the executor of the estate
  14. The OPG105 must be submitted to the SCCO with the bill of costs
  15. Bills of costs should be prepared and submitted on an annual basis

For further information, please go to the following link:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/538901/19_07_16_Professional_deputy_costs__FINAL.pdf

If you have any queries, 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.

Philpott – Is it reasonable to claim for updating accounts ledgers?

It is common knowledge that the SCCO refer to certain case law when assessing Bills of Costs in Court of Protection matters. Although the Costs Officers assess your incurred costs using their own discretion as to what is reasonable and proportionate, there are a number of themes which can be identified from the assessments we are seeing. If something stands out in which case law has determined that it cannot be charged to the Protected Party, it will be reduced or disallowed upon assessment.

A more recent case has come to our attention as we have seen the case quoted more recently on provisionally assessed Bills of Costs. In the case of Philpott, the written judgement was not published, however the SCCO were able to share a few comments made by Master Haworth whilst delivering his judgement. Essentially, whereby time has been spent updating the Protected Party’s financial records or schedules of income and expenditure, this has been noted as an ‘office overhead’ in some instances.

During the delivery of his judgement, Master Haworth made the following comments inter alia:-

“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. 

I know that I have a number of further appeals on similar lines which may well result in a written judgment from me in due course.  Nonetheless, it may be helpful for you to circulate this memo to the Costs Officers in the interest of consistency in the future.”

 Resultantly, we recommend that this task is delegated appropriately to a Grade D fee earner or non-fee earner where possible.

If you have any queries in respect of the above, please do not hesitate to contact the Costs Team at COPCosts@clarionsolicitors.com

 

Internal Communications – Are They Recoverable?

As Law Costs Draftsman, we appreciate fee earners frustrations when it comes to recovering fee earner communications within Court of Protection matters. Unfortunately, Costs Officers tend to disregard inter-fee earner communications upon assessment, but there are ways to ensure that you do recover the time incurred reasonably and proportionately.

In the case of Garylee Grimsley (1998), it states that claims in respect of discussion between a solicitor, Deputy and his junior employees should be disallowed as these are considered to be covered by overheads. Memos passing between fee earners were also disallowed as they amounted to inter-office liaison which had not added anything to the value of the legal services provided.

However, based on our experience, the Court will consider inter-office liaisons where reasonably incurred. If the matter you are dealing with is particularly complex, it may be appropriate, and indeed more cost effective to seek the advice of a higher grade fee earner. If the matter is being dealt with by a paralegal or trainee solicitor where authority of the Deputy is required in order to progress the matter, this time is also recoverable.

If you encounter issues whereby the work is outside the realms of your expertise, the Court tends to recognise that it is necessary to seek guidance or advice from fee earners in other departments, if it will progress the matter. For example, if the matter is particularly contentious, it may be appropriate to obtain advice from a litigation solicitor.

Although there are a few exceptions to the Court’s allowance, you should never expect for inter-fee earner communications to be recovered. It is a matter for the Courts discretion and resultantly, there is no guarantee that they will allow for your time spent.

In order to maximise your costs recovery, it is key to remember to always prepare a file note, detailing what you have done, why you did it and how long you spent doing it. This will help justify your time and will increase the chances of recovery.

If you have any questions or queries in relation to this blog please contact Stephanie Kaye (stephanie.kaye@clarionsolicitors.com and 01133363402) or the Clarion Costs Team on 0113 3363402.