We continue to see assessments returned from the Court where payments have been reduced to 3 minutes at a Grade D hourly rate. Furthermore, we continuously see time claimed for attendances of two fee earners reduced to just one, as they see this as duplicative work. All of this has an impact on the recovery of your costs in Court of Protection cases.

The OPG Costs Guidance states, “three minutes will usually only be allowed in respect of paying bills by electronic transfer, cheque or enclosure letter” and “a three-minute unit is usually allowed for very short straightforward letters, emails or duplicative letters”. Where there are two fee earners, the OPG Costs Guidance states “The SCCO allows the cost of one fee earner to visit in all except the most exceptional cases.”

Background and Case Law

The matter of Leighanne Radcliffe, before Master O’Hare, dealt with arguments on routine payments. The Bill of Costs submitted was in relation to General Management costs for the period 14 August 2002 to 13 August 2003. The Provisional Assessment was not accepted and the matter proceeded to a formal Detailed Assessment. Thereafter, permission to Appeal was granted. 

The Appeal was heard before Master O’Hare and gave guidance on invoices and payments. He allowed 3 minutes per letter as reasonable, explaining that where there is a high volume of bill paying letters, it is not appropriate to allow 6 minute payments to each.

The letters were payments for utility bills and Master O’Hare further stated “in making that allowance I would disallow the extra time for generally “looking after the matter”.

This case also serves to reiterate the decision made by Master O’Hare in the Jamie Walker case in terms of 3-minute charges for routine cover letters. It is noted that time spent checking an invoice, arranging payment and preparing the cover letter/cheque is non-fee earner work and therefore a minimal 3 minutes is allowed for the whole process.

The case of Garylee Grimsley (1998) deals with the arguments of time claimed for two fee earners in attendances. Master O’Hare referred to R -v- Legal Aid Board Ex Parte Bruce (1991). He stated that:

“Solicitors are not to be expected to carry knowledge of all the law in their heads… if the problem is outside the scope of their experience they will wish to discuss it with others who are more qualified… But knowledge of the law, however acquired or recalled, is their stock in trade… In so far as expense is involved in adding to this stock in trade, it is an overhead expense and not something that can be charged to the client”

Recommendations

Always expect time claimed for payments to be reduced to 3 minutes at a Grade D rate. In order to maximise recovery, we advise to delegate this work to a lower grade fee earner and agree with your instructed Costs Draftsman to include 3 minute payments within the bill.

In respect of two fee earner attendances, only claim the highest fee earner at an attendance. If you feel there are exceptional circumstances, fully explain these in the attendance note in order for the Costs Draftsman to include this in the Bill of Costs. Again, referring to the OPG guidance the SCCO will only allow these in exceptional cases. However, there is no guidance on what is deemed as an exceptional case.

Brian Ferry is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact him at Brian.Ferry@clarionsolicitors.com and 07741 663809 or the Clarion Costs Team on 0113 246 0622.

In FL v MJL (By His Litigation Friend, the Official Solicitor) [2019] EWCOP 31, an application was made to the Court of Protection to ratify gifts that had been previously made on MJL’s behalf, and also for authority to make prospective gifts on MJL’s behalf. MJL’s brother, FL, was appointed as Deputy pursuant to the Orders dated 21 July 2008 and 23 January 2012. The Official Solicitor acted as MJL’s Litigation Friend in the proceedings.

MJL is unmarried and has no children, and also has four siblings, who each have their own children. His estate was valued in excess of £17 million. MJL receives care funding from the NHS, and as a result has an annual surplus of over £100,000.00.

A Statutory Will was executed in 2010, in which FL and RL, MJL’s siblings, were appointed as executors. The estate was to be divided up as follows; 60% split equally between MJL’s siblings, with the remainder of the estate to be divided equally between several organisations, including Oxfam, Amnesty International, and War on Want.

FL, the Applicant, made an application to the Court authorising the retrospective authorisation of previous gifts made by FL as Deputy, including Christmas gifts to MJL’s siblings, as well as gifts to the Labour Party, The Red Banner, and Charter 88, continuing the standing orders set up by MJL when had capacity. FL also requested authority to make gifts in the future to the taxable and charitable beneficiaries under MJL’s will, however the Official Solicitor did not agree with the proposals.

The Official Solicitor instead proposed that a gift of £1,184,387.00 be made from MJL’s estate, to be split equally between the siblings and the charitable beneficiaries in the ratio agreed in the Statutory Will (60% between the siblings, and 40% to the charities). They also proposed that gifts be made in the future from MJL’s surplus income in the same proportions as above. It was believed that the gifts would be beneficial to MJL in respect of reducing inheritance tax.

It was agreed between the parties that MJL could afford to make the proposed gifts. The Judge agreed with the proposals made by the Official Solicitor, and also noted that the standing orders set up by MJL when he had capacity should continue and were in MJL’s best interests.