Author: Stephanie Kaye

The Process of a Request for Reassessment

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Unlike any other area of law, there is a process regarding Court of Protection assessments that is not in any written case or law, however a spoken arrangement passed down by Costs Judges in order to save judicial time – the Request for Reassessment.

What is it?

Once a Court of Protection Bill of Costs has been assessed at the SCCO, there may be various reductions made that you would not agree with, whether that be a reduction to your hourly rate, time spent liaising with P that was deemed ‘too excessive’ without any reference to case law or document reviews that were ‘unnecessary’. There is a chance to appeal this with the correct justification, prior to arranging a hearing.

It came about following a review of the appeal process by Master Haworth, as only oral hearings, which are expensive and time consuming were used for appealing amounts of time which did not justify the use of the process. Often the cost and time spent in an appeal outweighed any proportionate benefit.

Upon reviewing the assessment, if you are unhappy with it, you can lodge a request for reassessment with the SCCO.

The process for the request for reassessment is as follows:

  • If you are unhappy with the outcome of the assessment, you can request a reassessment within 14 days of the original assessment.
  • The Bill of Costs is returned to the Costs Officer who undertook the initial assessment for reconsideration in respect of the issues requiring reconsideration.
  • The Costs Officer will generally accept where they have made an error. They base their assessment on the points raised before them, so these points need to be justified and they need to have all of the facts to make an informed decision. It is not worthwhile to simply disagree with their approach – you need to explain why you disagree with particular reductions and on what grounds they should increase the amount allowed.
  • The assessment will be reconsidered on paper and returned to you with additional comments following the Costs Officer’s reassessment.
  • If you are still unhappy with the assessment, you can proceed to an oral hearing before a Costs Master; but be aware that this can be an expensive and timely process.

Here at Clarion, we are more than happy to review any assessments and consider an appeal; we can also lodge the request for reassessment on your behalf. Please get in touch with a member of our Costs Team to find out more.

Joshua Sidding is a Paralegal in the Court of Protection Team of the Costs and Litigation Funding Department at Clarion Solicitors. You can contact him at Joshua.sidding@clarionsolicitors.com and 0113 222 3245, or the Clarion Costs Team on 0113 246 0622.

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Client care and the indemnity principle in Court of Protection

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Stephanie Kaye, senior associate and Laura Gillin, associate at Clarion discuss the issues arising in respect of the indemnity principle following the decision of PLK & Others, client care requirements and what deputies need to do to recover the higher hourly rates.

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

NHS Trust v CD Ors – Can the COP consent to the withdrawal of life sustaining treatment?

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In the recent case of London NHS Trust v CD & Ors, P was a 20 year old woman who, on 18 January 2021, attempted suicide. She was discovered by the staff at the unit where she was a patient and was taken to a London Hospital where she has remained in intensive care since.

The case

As a result of the lockdown, P had returned from university to reside with her mother and sister from March to December 2020. During this time, she had been having psychiatric troubles whereby she had attempted to take an overdose of paracetamol and as a result, was voluntarily admitted to a private psychiatric hospital. It was as an inpatient at the facility where P tried to end her life.

P’s father commenced proceedings on 26 January 2021 to be appointed as her welfare Deputy. On 15 February 2021, P’s Mother applied to be appointed alongside others as P’s welfare and property and affairs Deputy. The consent orders were approved and the NHS were requested to file evidence.

On 9 March 2021, J Williams declared that P lacked the capacity to conduct the proceedings and to make decisions as to her care and treatment. Evidence was provided by the P’s neuro critical care consultant, consultant neurologist and an external second opinion from Dr Andrew Hanrahan, who all agreed that P had sustained extensive hypoxic brain damage as a result of the attempted suicide. This resulted in her being either in a persistent vegetative state or the lower level of minimally conscious state. The Trust’s treating team concluded that it was not in P’s best interests and it would be unethical to continue providing life sustaining treatment, specifically clinically assisted nutrition and hydration. P’s mother and sister agreed with the treating team however, P’s father did not agree.

Conclusion

The Court took into account all of the medical evidence provided in relation to P’s condition and prognosis and the understanding of the P’s personality, wishes and values. The Court concluded that it was not in P’s best interests to administer the life-sustaining medical treatment. Instead it was concluded that a palliative care regime would be implemented which would consequently allow her life to end.

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

Increase to Court Fees

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The Government issued a public consultation on 22 March 2021. The Ministry of Justice is consulting on increasing some court fees in line with historical inflation dating from August 2016 to April 2021, or from the year the fee was last amended (capped at August 2016). The proposal is limited to fees which are under-recovering compared to the estimated cost of the service and to fees which are enhanced, meaning they can legally be set above the cost of service. The impacted fees are included in the following fee orders:

•            Family Proceedings Fees Order 2008 No 1054 (43 impacted fees);

•            Civil Proceedings Fees Order 2008 No 1053 (67 impacted fees);

•            Court of Protection Fees Order 2007 No 1745 (3 impacted fees); and

•            Magistrates Courts Fees Order 2008 No 1052 (20 impacted fees).

At the same time as increasing fees, the Government is also proposing to widen access to the Help with Fees scheme and make it more generous. This proposal includes inflationary uplifts to the income thresholds, including the couple and child premiums, in the Help with Fees scheme, backdated to August 2016. The proposal will widen access to and increase the generosity of the Help with Fees scheme. In particular, the extended scheme will benefit women, people from black and minority ethnic backgrounds, disabled people and younger people, who all feature disproportionately among low income groups.

The proposed fee increases will raise an estimated additional net income of £11-£17 million a year for HMCTS after fee remissions, including the proposed changes to Help with Fees, are applied. This will help to ensure HMCTS continues to have the necessary funding to complete its much needed and important activities. Given the current economic uncertainty and the difficulty in forecasting rates of inflation accurately at this time, the figures included in this proposal are indicative and will be revised, based on actuals, prior to the implementation of the revised fee. Therefore, this estimated income is subject to change.

Responses are welcomed from anyone with an interest in or views on the subject covered by this consultation. The full consultation is available at: https://consult.justice.gov.uk/digital-communications/increasing-selected-court-fees-income-thresholds. Responses are required by the 17th May and can be submitted via an online survey using the link above, via email: mojfeespolicy@justice.gov.uk, or by post to: Fees Policy Team, Ministry of Justice, 102 Petty France, London SW1H 9AJ.

Any questions regarding this consultation can be addressed to the Ministry of Justice Fees Policy Team (mojfeespolicy@justice.gov.uk).

What is classed as a net-asset?

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Following the case of Penntrust Ltd v West Berkshire District Council & Anor 2020, the ambiguity of whether property is classed as a net-asset when considering a Protected Party’s estate was clarified.

For the purpose of context, the Applicant was appointed as the Protected Party’s Deputy in October 2014 in relation to property and financial affairs.

In January 2019, an Application was made to discharge the of professional Deputy. The Deputy sought the authority for detailed costs assessment by the Senior Courts Costs Office for the work conducted to the date of discharge, even though the asset value (according to PD19B) was below £16,000, because the Protected Party’s property – valued in excess of £300,000 – was disregarded

The Deputyship Order in which the Applicant wished to rely upon contained authority that stated ‘The Deputy is entitled to fixed costs in relation to their application and to receive fixed costs or the general management of affairs of the Protected Party. If the Deputy would prefer the costs to be assessed, the order is to be treated as authority to the Senior Courts Cost Office to carry out a detailed assessment on the standard basis’.

The Protected Party’s liquid assets were substantially less than the £16,000 requirement for costs to be assessed and therefore only provided the Applicant with the fixed costs provision under Practice Direction 19B. It was imperative for costing purposes that the Protected Party’s property that they lived in be established as an asset to increase the asset worth, in order for the Applicant to seek detailed assessment and recover costs incurred throughout the management periods. Ordinarily, the property would be disregarded if the Protected Party or a dependent lived there.

Following the hearing, it was concluded that the term ‘net-assets’ in PD19B effective from April 2017, falls to be interpreted according to the ordinary meaning of the phrase, ‘total assets minus total liabilities’. This meant that the Protected Party’s property would be included within net-assets which resulted in the £16,000 threshold being exceeded, allowing for detailed assessment. It was also noted the Protected Party’s occupation of the property did not exclude it from quantification of assets in this case.

Following this inclusion of the property, the Applicant had sufficient authority to seek detailed assessment from the Senior Courts Costs Office.

In cases where fixed costs are not appropriate, professionals may apply to the Court for clarification if their order gives them authority for a detailed assessment of costs. However, it is noted that the use of fixed costs is still encouraged by the Courts. The provision of the £16,000 threshold does continue to apply if the net-assets of a Protected Party are below the specified amount.

It is positive that the Court recognised that it is not always appropriate to disregard the property as an asset and this case enables Deputies to apply to amend their Order allowing the property to be included as an asset, regardless of whether the Protected Party or a dependent lives there.

COP hourly rates – the wait is over!

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Following a Hearing on 26 May 2020, the judgment by Master Whalan was handed down today, indicating a 20% increase to the rates payable in Court of Protection cases. After 10 years of no pay rise, the judgment is welcomed by professionals nationally.

The case was brought by 4 professional deputies from 4 different law firms as applicants collectively, namely Wrigleys Solicitors, Freeths LLP, Boyes Turner LLP and Gillhams Solicitors. The issue brought before the Senior Courts Costs Office was that of hourly rates and the fact that the Guideline Hourly Rates (GHR) had not changed for 10 years, but factors like inflation, increasing workload and growing responsibility on professional deputies had caused concern as to the sustainability of Court of Protection work. Clarion prepared the 4 bills of costs for submission, claiming the GHR of 2010 plus a percentage uplift to reflect RPI inflation (of approximately 31%) between 2010 and 2019.

A Directions Hearing took place on 17 April 2020 and the parties were asked to produce evidence in support of the claim. All four deputies, Clarion and instrumental resources from willing members of the Professional Deputies Forum produced evidence, further reinforcing that the 2010 rates were not fit for purpose.

Richard Wilcock of Exchange Chambers represented the parties at the Final Hearing, and relied on the  relevant factors in the Civil Procedure Rules, the GHR Review Committee and recent case law in his submission, all pointing to the fact that changes to the rates payable were essential. He made two key arguments; the first being that COP work is specialised, combined with the fact that deputies carry, in general, higher overheads, including increasing overhead time, which should mean that the current rates are paid with an uplift. His second argument was presented as an alternative solution, in that if the SCCO wanted to rely on the GHR as a starting point, then it must apply an empirical uplift to reflect the incidence of inflation between 2010 and 2019.

Due to inconsistencies in the evidence produced relating to overheads, Master Whalan was not convinced by the first argument. He said that the findings “do not, in my view, demonstrate that the burden is one that is exclusive to COP work or that it is atypically high in comparison with that experienced by practitioners in comparable areas of practice.” He confirmed that the approach set out in Re: Smith and others [2007] and Yazid Yahiaoui and others [2014] was still correct and applicable.

Maser Whalan then moved on Counsel’s secondary argument. He emphasised that he had no power to review the GHR, but recognised that they couldn’t provide “reasonable remuneration unless these rates are subject to some form of periodic, upwards review.” Importantly, Master Whalan states in his judgment, “I do not merely express some empathy for Deputies engaged in COP work, I recognise also the force in the submission that the failure to review the GHR since 2010 threatens the viability of work that is fundamental to the operation of the COP and the court system generally.”

On the topic of inflation, Master Whalan questioned whether CPI was more appropriate than RPI. He  said “I am satisfied that in 2020 the GHR cannot be applied reasonably or equitably without some form of monetary uplift that recognises the erosive effect of inflation”. He further specifies that “If the hourly rates claimed fall within approximately 120% of the 2010 GHR, then they should be regarded as being prima facie reasonable” and provides a suitable table of the GHR with a 20% uplift to assist the Costs Officers undertaking future COP assessments:

  Guideline Hourly Rates
Bands A B C D
London 1 £490 £355 £271 £165
London 2 £380 £290 £235 £151
London 3 £275-320 £206-275 £198 £145
National 1 £260 £230 £193 £142
National 2 £241 £212 £175 £133

Master Whalan concludes by saying that the rates above are applicable to all outstanding assessments, regardless of the year the work was undertaken. He also advised that the recommendations of the GHR Working Group must be adopted in preference to his findings.

This outcome is brilliant news for COP practitioners, providing overdue ratification for the work they conduct. Importantly, the outcome will mean that this area of work continues to be sustainable.

Clarion are delighted to have been a part of this case. We will be applying the 20% uplift to all cases going forward, and are happy to revise existing bills which have not yet been assessed to reflect the changes. Please contact stephanie.kaye@clarionsolicitors.com for further information and queries.

OPG v DJN

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In this case, the Office of Public Guardian applied to the Court of Protection to revoke a Lasting Power of Attorney that had been made by P, which appointed his son (DN) as his attorney. He subsequently lost capacity and concerns were raised as to whether or not P had the appropriate level of capacity at the time it was prepared. It had been investigated and concerns were raised that DN had not acted in the P’s best interests by selling his residence and transferring the majority of the proceeds to himself and mixing the finances by operating a joint account.

In December 2017, a district judge suspended the operation of the LPA and directed the appointment of an interim deputy. This order was formalised shortly after.

DN contested the substantive application. He maintained that P had capacity at all relevant times and denied any wrongdoing.

At the final hearing on 17 and 18 June 2019, the OPG’s application was dismissed, DN’s attorneyship was restored and the appointment of the interim Deputy was discharged.

DN sought an order for costs of £82,000 and argued that the hostile approach taken by the OPG was wrong. A detailed skeleton argument in support of the point that the OPG had behaved unreasonably in the matter was submitted for the court to justify departing from the normal costs rule.

The OPG rebutted this with arguments that its approach was not hostile but simply fulfilling its duties under s58 MCA 2005 and the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2017.

The Counsel for the OPG stated “In the alternative, if the court concluded that a costs order would leave P with insufficient funds, the court should make no order for costs. This would mean that the Public Guardian would bear his own costs and DN’s costs would be met from the monies he received from P.” Whatever position the court adopted, Ms Rich said that “this was certainly not a case where the Public Guardian should be made to pay the other party’s costs.”

Rule 19.2 of the Court of Protection Rules 2017 states that where proceedings concern P’s property and affairs, that the costs of the proceedings shall be paid by P or charged to P’s estate.

Rule 19.5 provides that: (1) the Court may depart from rules 19.2-19.4 if the circumstances so justify, and in deciding whether departure is justified the court would have regard to all the circumstances including; (a) the conduct of the parties.

The Public Guardian adopted what seemed to be a standard approach to litigation based on his approach to other cases. This was a serious failure especially when rule 1.4 COPR 2017 expects litigants to comply with the overriding objective. This obligation applies equally to the Public Guardian.

The judge concluded that there was good reason to depart from the usual costs rules as a result of the OPG failing to review the capacity evidence appropriately prior to commencing proceedings. Had this been done, the “obvious deficiencies” would have been noted.

Having consideration to the relevant law and the parties’ submissions, the order made was that the Public Guardian was not entitled to be paid his own costs from P’s funds and that he should pay 50% of DN’s costs (which shall include the costs of the appeal hearing) all of which shall be assessed at the Senior Courts Costs Office by a Costs Judge.

If you have any queries please contact Bridie Sanderson at bridie.sanderson@clarionsolicitors.com or 0113 336 3350.

Lockdown Lowdown – The OPG

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This blog forms part of a series of weekly interviews with several professionals during lockdown. It aims to inform Deputies and their teams about how each organisation within the field of Court of Protection has adapted to Covid-19 and what they should be aware of. Our fifth participant for Lockdown Lowdown is Ria Baxendale from the Office of the Public Guardian.

Q1. How have the OPG adapted to lockdown?

We have robust plans in place that ensure we can continue to deliver our services and we are working hard to maintain this. The deputyship team performance is being maintained throughout the period though it’s worth noting, that when the posting items to us, there can be some delays in receiving information and recommend using email where possible.

OPG remains committed to carrying out our duties, for example, in investigations we’ve prioritised those most at risk, to make sure those who need us most receive the service they deserve. At the moment, we aren’t undertaking assurance visits, however, we are keeping this under review in line with the Government guidance.

For our staff, their health and wellbeing is very important, we’re regularly updating our staff on advice provided by Government and Public Health England (PHE). We’ve displayed PHE posters in key areas to ensure our staff follow government advice. For those working in the office and as part of our plans to return more staff in the future, social distancing posters and one-way systems have been put in place in our offices to remind people and encourage them to maintain social distancing.

We have seen some areas of backlog during the processing of an application and have focused our overtime on clearing these backlogs and to try to maintain our target of 40 working days to process an application. During the past few months, we’ve seen a slight increase to 45 working days. We’ve also had a focus internally on staff wellbeing, creating specific sections on the intranet for staff to access information easily, we have regular all staff calls for updates and Q&A and wellbeing packs have been created with consideration for those who live alone for long weekends. Guidance has been created for OPG users for completing their roles during the COVID lockdown and is available on gov.uk

Q2. What impact do you think this will have on professional Deputies?

So far there is no impact on professional deputies in terms of the service we provide and usual workings. We are always striving to improve our systems to make reporting as easy as possible for deputies and to facilitate our supervision. Online reporting is now fully rolled out and we have received very positive feedback. We would encourage deputies to engage with us if there are areas in which they have suggestions for improvement.

In addition, we have just initiated a review of some of our supervision processes, we will be engaging our stakeholders throughout and will consider the impact on our users of any potential recommendations which this exercise generates. We operate in a culture of continuous improvement and welcome feedback at any time.

Q3. Have the OPG learnt anything so far from the pandemic?

Our main learnings during Covid-19 have been how we can adapt our current ways of working. We’ve enabled our contact centre staff to work from home, introduced new processes within our operations team allowing some areas of case work to be done from home and introduced an offsite printing and posting system for our mail.

We’ve seen an increased need in our digital services so we’ve shifted some focus to going digital as some of our processes are still very paper based. There’s been emphasis on Use an LPA, allowing donors and attorneys to share their LPA with banks and utility services by using an online code system which is currently in its private BETA phase. We’ve also learnt how important an LPA is to assist people in times such as this, and how important advance planning is so that people can act on your behalf when needed, which is why we created an entirely online version of our Your Voice Campaign. We’ve focused on raising awareness of LPAs within a new target audience, those from a BAME background, as they’ve been disproportionately affected by the virus. This campaign has been entirely focused online with the idea to increase uptake of lasting powers of attorney, or alternative to help them plan for the future.

Q4. Are the OPG still available by telephone?
Yes, our contact centre is still up and running. We have adapted to allow most of our staff to work from home with skeleton staff in the office. If you would like to speak to your dedicated case manager we would advise emailing the Professional Team and we will arrange for your case manager to call you.

Q5. What is the OPG’s priority at this time?

The OPG’s priority continues to be to fulfil its statutory functions. We continue to supervise and support deputies during this time.

Q6. Do the OPG have any feedback for professionals about the OPG105?

We would continue to encourage all professional deputies to provide as much detail as possible in their annual reports, including the cost sections. Where detailed information is provided, this significantly reduces the need for us to ask any further questions of you. The OPG appreciates that circumstances can change throughout the year, we would encourage you to keep us updated about these changes and any impact this may have on your costs by speaking to your case manager or by emailing opg.pro@publicguardian.gov.uk.

Q7. How have you been keeping busy during lockdown?

Workwise, I have been frantically working with my team on updating our online guidance to support people during this period and providing 24 hour turnaround policy advice to operational staff to help them deal with queries from the public.  A lot of the work has focused on managing the current situation, but I have also been progressing business as usual items as well in the margins, so that OPG can continue to move forward in its service delivery in the future.

Personally, I have a very active dog, who has got far too used to his personal assistant working from home, providing cuddles on demand, giving outdoor access whenever he likes and taking him to the park every day for a good run.  My cat, on the other hand, can’t wait for these human invaders to leave his house as they are interrupting his sleep schedule.  I have also discovered Netflix and Amazon Prime over this period.  I am an active and (not a very skilled) creative person, so there has also been a lot of drawing, sewing, writing and cookie decorating going on.  And, of course, reading my socks off.  I also have a major interest in diversity and inclusion, so have been educating myself on current events and how I can strive to be a better person coming out of lockdown than when I went in.

Q8. What are you most looking forward to after lockdown?

Honestly, I am quite a self-isolating, introverted person anyway – I really struggle with groups and people.  So, ironically, I can’t wait for all the shops, bars and gyms to reopen so that the people currently invading my sanctum of peace in the fields, woodlands and outdoor areas leave and return it to being a place where I don’t see anyone else on my walk.  Also, I make and decorate cookies as a hobby, and I have not been able to get the flour I need since lockdown started due to all the lockdown banana bread and sourdough baking  – so I’ll be grateful for the home baking to slow down so I am able to get the ingredients again for my hobby.  I will be grateful for the reduction of video conferences and screen time – sitting in a room and speaking to someone to have a break from the screen will be bliss for me – I feel like I’ve been surgically attached to my laptop.  Also, I’ve had some new staff start during this period, so meeting them in person will be nice, alongside catching up in person with everyone else – although not too many at a time, I’d find that overwhelming.

Overall, I think this has made me reflect on a lot of things and realised some of the privileges you take for granted – so I think I would like to say I am looking forward to being more grateful for the little things moving forward, which will hopefully make me a better human being.  I am not, however, looking forward to not having my dog as my co-worker everyday.

Clarion would like to thank Ria for taking part in Lockdown Lowdown and would like to thank the OPG for their tireless efforts in trying to improve this area of practice. Coming up in the series, we will be hearing from Lynsey Harrison from Clarion. If you would like to suggest another interviewee for Lockdown Lowdown, please contact Stephanie Kaye at stephanie.kaye@clarionsolicitors.com or call 0113 336 3402.

Can you recover your costs for time spent delegating in COP cases?

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My talented colleague, Helen Spalding recently wrote a blog about the decision in  Fuseon Ltd, R. This costs claim arose from a private prosecution by Fuseon Ltd, a Lancashire based letting agency, against a Director of the business who had committed fraud and theft of over £100,000 relating to tenancy deposits, personal expenses and false invoices. You may be thinking, what does this have to do with Court of Protection costs?

In the decision, Master Gordon-Saker touched on inter-fee earner discussions and duplication. Detailed guidance was provided in respect of what is and is not recoverable in this regard in paragraphs 42 through 44. Master Gordon-Saker confirmed that reasonable time spent in inter-fee earner discussions is properly allowable. It is difficult to delegate tasks to junior fee earners without instructing them what to do and the reasonable time of the delegator and delegate is usually now considered to be recoverable.

Whilst this is not a COP case, this clearly shows that reasonable time spent delegating is not only expected, but should be recovered. So why does this not happen consistently in COP cases?

The Senior Courts Costs Office rely on the decision in Tina Jayne Cloughton (1999) and regularly note this on assessments to reduce or disallow time spent delegating, but it is unclear why a 21 year old decision is quoted, when we have new case law which clearly contradicts it.

There are many historic cases which are regularly referred to in COP assessments which are arguably outdated and no longer applicable. There is increasing frustration amongst professional deputies because COP work is still considered more routine than other areas of law, despite the significant responsibilities personally placed on deputies and the niche, complex and important issues which are dealt with every day. Delegation is particularly relevant to COP cases because most work is expected to be undertaken by Grade D and C fee earners, but how can that be achieved without some input, guidance and delegation from senior fee earners, who bear the responsibility and authority?

We hope that the message in the recent decision in Fuseon Ltd, R. will filter through to COP cases, and we will continue to recommend that reasonable time spent delegating complex work and communicating with colleagues is claimed within the bill of costs.

If you would like to know more, please contact stephanie.kaye@clarionsolicitors.com or call 0113 3363402.

 

 

 

 

KKL Executor & Trustee Company Ltd v Harrison (2020) – Is it cynical for a professional Deputy to expect to be paid?

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The short answer is no. The above case concerned an elderly woman (OT, the Protected Party) in Leeds who lacks capacity to deal with her property and financial affairs. KKL is a trust corporation working closely with (both in terms of being the subsidiary of and working from the same office with) a charity called JNF Charitable Trust (“JNF UK”). Ms Harrison made an application to be appointed as property and affairs Deputy for the Protected Party and KKL lodged a competing application, on the basis that they were well known to the Protected Party and they felt that they were best placed to act as Deputy.

For the purposes of the proceedings, Ms Harrison acted as Respondent to KKL’s application to be appointed as Deputy. Ms Harrison’s objection to KKL’s application was based on three key issues. The first was KKL’s lack of independence from JNF UK and the potential for a conflict of interest to arise between the Protected Party’s interests and the interests of JNF UK as the main and residuary beneficiary of the Protected Party’s latest will.  The second was KKL’s lack of experience as a property and affairs Deputy and the third was KKL’s geographical distance from the Protected Party, and their apparent conflict with others with whom the Deputy would need to work in the Protected Party’s best interests pursuant to section 4(7) of the Mental Capacity Act 2005.

Within KKL’s arguments against Ms Harrison being appointed as Deputy, they raised the issue of costs. They said that the standard wording within the application for costs to be assessed on the standard basis was “a cosy arrangement regarding costs that is buried in the small print of her application”.  Judge Geddes responded to say that this was “(literally) factually wrong” and that the application “reflects standard wording within the templates produced by the Court of Protection”.

KKL also raised questions as to the fact that social services consulted a lawyer from the Lawdesk Panel of Private Client Lawyers about their concerns over the Protected Party’s mental capacity and her ability to manage her own finances. Judge Geddes responded to say the there is a risk to Clarion Solicitors of acting in such cases in that “if their application were rejected they might be left to bear their own costs of bringing the application which they do so purportedly in the Protected Party’s interests.” Judge Geddes quashed any notion that is was inappropriate and continued to say, “Of course, in this limited sense they have an interest in either the success of the application or at least in not being criticised for bringing the application to the point of disapplication of the general rule about costs contained in rule 19.2 of the Court of Protection Rules 2017 namely that “Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings… shall be paid by P or charged to P’s estate”.

Further in respect of costs, Judge Geddes responded to KKL’s arguments, stating “It will be a matter for submissions on costs whether or not the conduct of either party has been unreasonable or should be marked with the court’s disapproval by disapplying the usual rule.  So long as the proposed deputy is acting in good faith, however, I would not consider their expectation of having their costs paid in accordance with the usual rule out of P’s estate could be considered “cynical”. It remains that the starting point for professionals is to expect to have their costs assessed and paid from the estate.”

Judge Geddes acknowledged that it would be cheaper to appoint KKL rather than Ms Harrison, but overall, found it to be in the Protected Party’s best interests for Lynsey Harrison to be appointed as Deputy. It was ordered that costs incurred by Clarion Solicitors could be assessed and paid from the estate.

It is clear from this case that professional Deputies are not expected to be limited to fixed costs and the starting point is that they should be paid, subject to detailed assessment, for their hard work in managing property and affairs.

If you have any questions, please contact Stephanie Kaye at Stephanie.kaye@clarionsolicitors.com or call 0113 3363402.