Author: Stephanie Kaye

Recent Developments from the Professional Deputies Forum

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Clarion are delighted to work alongside the Professional Deputies Forum (PDF) and we wanted to share the recent great efforts of the PDF working group, which our Stephanie Kaye is a part of.

Interim payments and fixed costs

Following on from the recent delays with the SCCO, at the recent Court of Protection Rules Committee, Martin Terrell (representing the PDF), proposed the idea of extending interim payments in matters other than the general management costs. An agreement was reached, whereby in matters where a final order has been made, solicitor-applicants are allowed to ask the Court for interim payment of up to 75%. This ensures that the solicitors will not have to wait until after assessment to receive their costs in matters such as Deputyship applications, statutory will applications or other ad-hoc applications. The Deputy would need to issue a credit note if the final costs allowed on assessment are less than the amount taken on account and these funds would then need to be returned to P. This development will need to be trialled, however, it will benefit many firms and ensure that they are able to remain financially viable. This is huge progress for those firms who carry significant WIP on application cases.

SCCO delays

The PDF has written to the Cost Judges to express their viewpoint on the delays and lack of engagement from the SCCO with the PDF. The PDF has advised that the only official route of complaint is via the HMCTS. Members of the PDF are encouraged to file complaints via this method if they have not already done so in the hope that the volume of complaints will have a greater impact and achieve the shared goal amongst Court of Protection practices. There is a direct link to the complaints procedure on the SCCO website. Any progress made with the SCCO will be shared on the PDF forum and also on the Clarion blog.

If you have any questions regarding the work of the PDF working group or any concerns to bring to the attention of the PDF, please contact Stephanie Kaye directly.

This blog was written by Casey McGregor. If you have any questions regarding COP costs, please contact Casey at Casey.Mcgregor@clarionsolicitors.com

Further notice from the SCCO on COP assessment delays is now available

Stephanie KayeLeave a comment

On 22 March, the SCCO released a further notice in relation to the ongoing delays with assessments.

In summary, turnaround at present is as follows:

  • Costs Officers are currently being assigned bills of costs received in or after late September.
  • The Admin Team are processing the return of assessed bills received back from the Cost Officers in the last week of February.
  • New filings for assessment received in late January are being considered.
  • Certificate request filings received in mid-March are being received and actioned as acknowledgement of the requests to receive payment before the end of the financial year.

The SCCO have requested that enquiries about the progress of bills which supported paperwork was submitted around or after late September and any e-filings that have not been accepted/rejected that were submitted after late January are limited to aid in the efforts to focus on the reduction of the backlog.

Please see the link below for the full notice released:

Notice-to-COP-customers-21-March-2022-SCCODownload

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

The Indemnity Principle in Court of Protection Costs – Why It Is So Crucial

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Introduction

To be defined, 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.” (The Senior Courts Cost Office Guide, 2021, pg. 21.) When this principle is applied to Court of Protection costs, it posits that a Deputy cannot claim costs higher than that which they have stated in their client care letter or retainer letter.

The Protected Party is not liable to pay costs higher than those that have been stated in such documents, unless evidence is shown that the Deputy has authority to claim higher rates. The earliest form of the indemnity principle can be seen in the judgement from the case of Harold v Smith [1860] 5 H & N 381.

Over recent years, the hourly guideline rates have been in flux, as we have now landed in the era of 2021 Guideline Hourly Rates. In a climate of changing rates, it is crucial for solicitors to evidence that they have not breached the indemnity principle and it is key for Cost Officer’s to ensure the principle is being maintained. Upon having costs assessed, it is extremely common to see Cost Officer’s requesting evidence the principle has not been breached.

This blog aims to outline why this is so important for a Protected Party and to give a brief overview of the key aspects of the indemnity principle in relation to the Court of Protection.

Standard Basis/Indemnity Basis

Costs in Court of Protection are assessed on the Standard Basis, or Deputies may take fixed costs as outlined in Practice Direction 19B – a supplementary material for the Court of Protection Rules 2017. The Standard Basis simply means that in such instances, a costs judge will permit costs to be recovered that are crucially, proportionate, as well as being both reasonable in amount and reasonably incurred. (See the Court of Protection Rules Section 44.3 for further information.) This basis ensures that costs incurred for a Protected Party’s management period will always be appropriate and justified.

If costs were assessed on the indemnity basis (where the notion of proportionality is absent), Protected Parties would be at risk of being taken advantage of, since they would lack the capacity to argue the costs claimed for work carried out were unreasonable. However, the Mental Capacity Act 2005 negates this possibility, as after it was enacted all Court of Protection Costs were assessed on the standard basis.

Breaching the Indemnity Principle

As already alluded to, the common way the indemnity principle may be breached is through the absence of a Client Care Letter or Retainer Letter. A Client Care Letter is typically the first correspondence a client or Protected Party may receive from the Solicitors once the Court has appointed a Deputy. The letter will outline information regarding the services being provided and perhaps most importantly, the cost of legal services in the form of hourly rates. A retainer letter will function the same way, declaring the costs of the Solicitor’s services set out as hourly rates.

A breach of the indemnity principle may occur where a Deputy has claimed rates for work undertaken that they have not outlined to the client. For example, if one were to charge £200.00 an hour in the bill of costs, but initially informed the Protected Party the hourly rate was £100.00, this a breach of the indemnity principle – the Protected Party is liable to pay an hourly rate of £100.00, but the Deputy is attempting to recover higher costs of £200.00 which were not disclosed to the Protected Party.

Where a Deputy chooses to have their costs assessed, a Cost Officer will review the bill of costs to assess the costs that are recoverable for the Deputy. The Client Care Letter or Retainer Letter must be provided to the Senior Courts Cost Office alongside the bill of costs to evidence that the Deputy has authority to claim such rates. If a Cost Officer cannot locate such evidence, they will subsequently reduce the hourly rate of the work undertaken to that which may have previously been claimed, or assess the bill on the basis that the Deputy will provide such evidence upon applying for a Final Costs Certificate.

It is highly unlikely to see Deputies breaching the indemnity principle intentionally. To effectively comply with the SRA Code of Conduct, Solicitors will always prepare a Client Care Letter outlining their work and rates. The problem arises when this is not presented to the Cost Officer along with the bill and thus upon assessment, the Cost Officer does not know the rates at which the Deputy can claim and consequently reduces them.

Problems in Changing Rates

If the hourly rates for Court of Protection Costs were fixed, evidencing that the indemnity principle has not been breached would be much simpler. However, considering we are now into the third set of hourly rates Solicitors can claim, this complicates matters. For a Deputy to claim new rates that come into force, they have an obligation to inform the Protected Party that the rates have changed; by way of updating their Client Care Letter.

It can often be seen on assessment that Solicitors fail to amend the Client Care Letter before the change in rates comes into action, in which case it becomes difficult to claim the higher rates from when they may have commenced.

To illustrate, if hypothetical higher rates came into effect on 30 September 2022, but a Client Care Letter was not updated until 30 October 2022, it would be a breach of the indemnity principle to claim these higher rates from 30 September 2022, because the Protected Party is only liable to pay the costs that have been stated, which up until 30 October 2022, were different rates. Regardless of when the new rates may have came in, if the Protected Party was not aware of such rates, they are not required to pay costs higher than those which have been stated. Therefore, it is essential for Solicitors to amend their Client Care Letters in a timely manner, to ensure they can maximise new rates when they come into force.

Final Remarks – Protecting the Client

From what I have explained in this blog, it should be clear that the indemnity principle serves to Protect a Protected Party. The principle ensures the costs incurred by Deputy’s are always fair and balanced. Recovering costs in Court of Protection work may seem complicated at times, especially when there has been several changes to the hourly rates. However, it is important that the necessary measures remain in place to ensure Protected Party’s pay costs that are fair and proportionate to the work carried out.

For more information on what has been discussed, I invite you to consider the following resources:

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

Who are the interested parties and who should be served in COP cases?

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An interested party is anyone with a financial interest in the outcome of the assessment. Rule 47.19 of the CPR enables the court to direct under rule 47.19(3) that the receiving party must serve a copy of the request for assessment and copies of the documents which accompany it, on any person who has a financial interest in the outcome of the assessment.

Practice Direction 47, para (18.2) explains what is or is not a ‘financial interest’. It states ‘A person has a financial interest in the outcome of the assessment if the assessment will or may affect the amount of money or property to which that person is or may become entitled out of the fund. Where an interest in the fund is itself held by a trustee for the benefit of some other person, that trustee will be treated as the person having such a financial interest unless it is not appropriate to do so. ‘Trustee’ includes a personal representative, receiver or any other person acting in a fiduciary capacity’.

The SCCO expect the professional Deputy to determine who such an interested party may be and for the Deputy to take a sensible, pragmatic approach. It may not be appropriate to serve every beneficiary of P’s estate, for example. It is recommended that any interested parties are highlighted for the SCCO’s attention when e-filing your bill of costs.

Sometimes the SCCO will indicate on the assessment that the bill of costs needs to be served on the interested parties, but even where they don’t state that, it is up to the Deputy or Claimant to decide if the bill should be served. There have been instances where a Final Costs Certificate has been obtained and an interested party has come forward asking why they were not served at the time, wishing to challenge the outcome of the assessment. If the SCCO decided that party should have been served, the Claimant may be liable for the costs of that additional process as a result of not following procedure.

The link to the procedure rules can be found at: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-47-procedure-for-detailed-assessment/practice-direction-46-costs-special-cases2#18.1

If you have any questions, please do not hesitate to contact Casey Mcgregor at casey.mcgregor@clarionsolicitors.com

What Fixed Costs can be taken within Court of Protection cases?

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Practice Direction 19 (b) sets out the fixed costs that may be claimed by solicitors and public authorities acting in Court of Protection proceedings. In line with the Practice Direction, the revised fixed fees for the Court of Protection, effective from 1 December 2017 is as follows:

 Fixed Fee (plus VAT)
Appointment of Financial and Property Deputy£950.00
Appointment of Health and Welfare Deputy£555.00
Appointment of a Trustee£500.00
First General Management Year£1670.00
General Management for the second and subsequent management years£1320.00
Preparation of the Deputyship Report£265.00
Preparation of the basic HMRC income tax return£250.00
Preparation of the complex HMRC income tax return£600.00
ConveyancingA value element of 0.15% of the consideration with a minimum sum of £400.00 and a maximum sum of £1,670.0 plus disbursements.
Interim PaymentsUp to 75% of the WIP incurred

If you take the fixed cost available, you forfeit the right to an assessment later down the line. If you have authority for the assessment of costs in your Order and you will exceed the fixed cost amount, we recommend that you opt for assessment instead as it’s very likely that you’ll recover more than the above amount. Despite several hourly rate changes in recent years, fixed costs have not changed, so they remain at a low level which most practitioners do not consider suitable for their cases.

The link to the Practice Direction can be found at: https://www.judiciary.uk/publications/fixed-costs-in-the-court-of-protection/

If you have any questions, please do not hesitate to contact Casey Mcgregor at casey.mcgregor@clarionsolicitors.com

Protecting The Vulnerable Whilst Promoting Autonomy – The Secretary of State for Justice v A Local Authority & Ors [2021] EWCA Civ 1527

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Background

The case was brought forward to the Court of Appeal from the Court of Protection after Mr Justice Hayden sitting in the Court of Protection made the decision that care workers would not commit a criminal offence under section 39 of the Sexual Offences Act 2003, were they to arrange for a man aged 27 (hereafter known as “C”) to visit a sex worker in circumstances where he had capacity to consent to sexual relations and to also decide to have contact with a sex worker; with the arrangements not being made by himself. 

Preliminaries

C had been diagnosed with Klinefelter Syndrome (XXY syndrome). This resulted in developmental delays and social communication difficulties. As such, C required a large amount of assistance with independent living. C spoke with his Care Act advocate about having sexual activity with a sex worker, who then liaised with C’s social worker. In turn, the social worker raised this matter with the Local Authority and proceedings commenced addressing the lawfulness of such contact. 

The key distinction was that the concern was not whether the care workers were acting within the best interests of C and acting to make C’s wishes come to fruition, but rather whether the care workers would “cause” C to engage in sexual activity. This would directly breach Section 39 of the Sexual Offences Act 2003 and the care workers would be committing an offence were this the case. However, in brief, the judge concluded the care workers would not be doing so.

Hayden J dealt with this question and made decision which is the subject of appeal by the Secretary of State for Justice who had been added as a respondent.

Conclusions on Section 39 of the 2003 Act

Hayden J accepted the submission that the care workers arranging for the Protected Party to visit a sex worker would not amount to “causing the Protected Party” to engage in sexual activity. His reasoning being that the central Philosophy of the 2003 Act as being to “protect those where the relationship itself elevates vulnerability” along with one of the aims of the 2003 Act being “to empower, liberate and promote the autonomy of those with mental disorders.”

Most notably, the activity was desired by the Protected Party who did have capacity to decide whether to have sex or not. Section 39 aims to protect those whose autonomy could be oppressed, but importantly, not to protect them from themselves – this would contradict the aim of promoting autonomy in those with mental disorders. There would be no abuse by the care worker who had facilitated C’s choice because the actions would have been calculated to voice C’s autonomy within the sphere of sexual relations.

The proceedings of this case were regarded as a steppingstone for a further envisaged care plan regarding C’s wishes. However, the position of the Clinical Commission Group remains to be that the risks to both C and the sex worker may be too great to warrant the potential care plan facilitating this.

Grounds of Appeal

The Secretary of State advanced three grounds of appeal. (1) The judge misinterpreted section 39 of the 2003 act. (2) To sanction the use of a sex worker is contrary to public policy and (3) the judge failed to conclude that articles 8 and 14 of the Convention required his favoured interpretation.

Final Judgements and Conclusions

It was declared that despite The Secretary of State advancing grounds of appeal, the proceedings would be appealed on the basis that arranging the services of a sex worker would place the care workers in considerable risk of committing an offence under section 39 of the 2003 Act.

Lady Justice King reasoned in line with this, drawing on the Mental Capacity Act 2005: “achieving autonomy for an incapacitated adult lies at the heart of the Mental Capacity Act 2005”. It is not the role of the Court of Protection to endorse an act that would be unlawful, yet under a reading of the statute without interpretation this would be the case.

Moreover, Lord Justice Baker agreed and recommended that an appeal be allowed, stating that the powers to decide whether a proposed course of action would be criminal does not exist within the scope of the Court of Protection. Lord Justice Baker went on to highlight the risk it would place the care worker sin if this course of action were followed, in line with Lord Chief Justice.

Remarks:

Overall, this case serves to highlight the scope of law for the Court of Protection as well as raise an interesting discussion into the limits of best interests decisions for Protected Parties. Furthermore, the case highlights the core aims of both the Sexual Offences Act 2003 and the Mental Capacity Act 2005, that being, to protect the vulnerable whilst at the same time allowing for empowerment and the promotion of autonomy.

The full detail of this judgement can be found here.

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

Will COP hearings continue remotely in a post-Covid world?

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Following the announcement on the 10 June 2021 from the President of the Family Division, Sir Andrew McFarlane, a two-week rapid consultation on remote, hybrid and in-person hearings within the family and Court of Protection (COP) systems has taken place and ended on 27 June 2021.

This was the third survey looking into the impact on hearings following the change of location and format. Unlike the previous two, this was a shorter survey and focused questions on which parts of working remotely should be retained, any further issues that occurred and what best actions could be taken to avoid these. Following the relaxation of some lockdown rules, this survey also looked at the experience of attending court in person.

The survey was completed by the Nuffield Family Justice Observatory (NFJO), an independent organisation which is committed to improving life for children and families by putting data and evidence at the heart of family justice system. The NFJO has gathered evidence from families with children and all professionals working in the family justice system, including judges, barristers, solicitors, Cafcass workers, court staff and social workers and the findings of this will be available for the President’s Conference in July.

We will report sooner on the topic as soon as more information is available about in-person hearings in the future.

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

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

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

Stephanie KayeLeave a comment

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.