The recent case of Cumbria County Council v A (2020) highlights the importance of the Deputy’s role and the process when the Local Authority no longer wishes to act as Deputy.

The Local Authority expressed a wish to cease being a property and affairs Deputy and instead, have a professional Deputy appointed for 7 individuals. However, the Court were mindful that this was likely to cost the Protected Party more than double in all cases to transfer from a Local Authority Deputy to a professional, therefore it was necessary to consider whether this was in the Protected Party’s best interests. The Public Guardian contended that generally, if a Deputy no longer consents to act, the Court cannot decline an Application to discharge, but the Court was required to consider all the facts.

The significant concern was the question of costs and there was suggestion that the Court should consider the approach taken by Cumbria County Council in no longer wishing to act as Deputy and whether this complied with Section 149 of the Equality Act 2010. The Court confirmed that they were not able to grant a public law remedy in such circumstances. Hayden J emphasised that The Mental Capacity Act 2005 and the Court of Protection reflect precisely the same philosophy and that was the underpinning of the Equality Act 2010.

Hayden J concluded that the decision to discharge a Deputy is one for the Court, acting within parameters of reasonable discretion and that they will be required to evaluate the strength of the welfare interests to the Protected Party. There can be no presumption of the conclusion and each application must be brought before the Court. The guide will always be in the Protected Party’s best interests, including his/her financial interests. The Court will focus on the impact of the Protected Party by either granting or refusing the Application. On the facts, the Application in this case was granted.

On the basis of the above, always consider the Protected Party’s best interests when determining who should be appointed as Deputy.

The judgment can be found here: https://www.bailii.org/ew/cases/EWCOP/2020/38.html

If you have any questions, please contact Tanya Foran at Tanya.Foran@clarionsolicitors.com or call 0113 246 3240.

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.

The Civil Procedure Rules Committee held their annual open meeting on 15^th May 2020. Given the present circumstances, the meeting was successfully held via Skype.

The previous two meetings covered several costs issues including the establishment of a sub-committee to make recommendations in respect of guideline hourly rates which have not been updated in the last 10 years. The committee is due to make recommendations by the end of this year with an update to the rates to take place thereafter.

The April minutes, which have just been released, confirm a that a sub-committee has also been established to consider costs rates other than guideline hourly rates.

The following costs matters were discussed at the open meeting in May, minutes of which will likely be published in June:

Vulnerable Parties – The sub-committee sought guidance on four points; an amendment to the over-riding objective to cover vulnerable parties, an accompanying PD, an addition to CPR44.3(5) regarding proportionality to specifically include vulnerable parties, and whether to approach the MOJ in respect of amending fixed, scale and capped costs for cases involving vulnerable parties. The committee broadly agreed with the proposals with some caution regarding the overriding objective.

CPR 45.18 – The committee agreed that the deletion of the upper limit of £25,000.00 from tables 6 and 6A would be recommended.

Qader v Esure– Issues had been raised following the amendments to CPR 45 Section IIIA concerning the effect on parties’ settlement tactics in matters likely to be  allocated to the multitrack due to the difference in the level of costs recoverable pre and post allocation. The committee discussed the matter and concluded that no action should be taken.    

QOCS  / Ho v Adelekun – The issue of off-setting Defendant’s costs against Claimant’s costs where damages are insufficient has been referred to the costs sub-committee. The committee will keep a watching brief on the appeal in Ho and consider revision to CPR 44.14 thereafter.

Part 36 acceptance in pre-action matters – Where a Part 36 offer is accepted pre-action there is no deemed costs order (CPR  44.9(2)).  The costs sub-committee will consider whether there is a need to amend CPR 46.14 regarding costs only proceedings to be explicit in respect of Part 36 acceptance on pre-action matters.

Helen Spalding is an Associate in the Costs and Litigation Funding Department at Clarion. You can contact her at helen.spalding@clarionsolicitors.com or on 0113 288 5639.

The recent judgment in Fuseon Ltd, R provides a reminder of a number of established principles in respect of recoverability of various heads of costs between the parties.

The 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. The police were unable to investigate and therefore the company brought a private prosecution using Central London firm, Edmonds Marshall McMahon Limited, having failed to find a local firm to take the case. The Director was ultimately convicted and an order was made for a payment of costs to the prosecution out of central funds including costs of the investigation. 

Costs were submitted in the sum of £427,909.00 to the Criminal Cases Unit of the Legal Aid Agency and were initially determined by the case manager in the sum of £180,000.00. The key decisions being a reduction from London hourly rates to Preston guidelines, a reduction in travel time to what would have been reasonable for a local firm, removal of duplication between fee earners, non-fee earner work, and a Singh reduction for proportionality.

Fuseon requested a redetermination and costs were increased to £240,000.00, a subsequent appeal was then dismissed by Master Rowley. In August 2019 Fuseon commenced judicial review proceedings and the decision of Master Rowley was quashed. It was directed that the assessment of the Claimant’s costs be remitted to the Senior Costs Master for further directions. The matter came before Master Gordon-Saker who re-heard the appeal from the determination of the case manager. This was dealt with on the papers at the Claimant’s request.

Hourly rates – At the initial assessment, it was not accepted that there was no choice but to instruct a central London firm. Rates for a local firm were therefore applied based on guideline rates for Preston. Master Gordon-Saker, guided by the comments of Lane J. in the judicial review judgment, found the use of a Central London firm to be reasonable on the facts. The Claimant had carried out suitable research and contacted firms but could not find anyone offering private prosecutions for fraud. It was reasonable to use London solicitors due to the specialism required. The hourly rates claimed were therefore reviewed against the guidelines for central London. The rates were allowed save for reductions to the Grade C and D handlers. It is worth noting that Master Gordon-Saker commented at paragraph 30 that ‘the guideline rates are of course just that. They are fairly blunt instruments designed to assist judges in the summary assessment of costs. The passage of time since 2010 means that they tend now to be used as a starting position rather than as carved in stone.’

Travel time – Additional travel was allowed in light of the permitted use of London Solicitors, however, travel to attend the client was disallowed as a client is generally expected to travel to attend their solicitor. 

Inter-fee earner discussions / 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. […] On the other hand, two fee earners attending on a witness or the client will rarely be reasonable, unless there is a specific reason. Lawyers should be reasonably adept, like most people, at speaking or listening and writing at the same time. For similar reasons I cannot see that more than one fee earner attending trial, together with Counsel, was reasonably required.’ For example, additional time was allowed for the Partner reviewing documents such as witness statements prepared by others but time spent for an additional fee earner to prepare for attendance at the trial was removed.

Non-fee earner work – Researching social media, contacting witnesses about the trial and preparing bundles were allowed as work normally carried out by fee earners. Items that were disallowed included photocopying (described in the bill as ‘collating extra copies’ and ‘preparing copies’), printing, posting, booking flights, and elements of the bundle preparation such as scanning.

Proportionality – Following from the judicial review judgment, it was found that the initial use of the CPS as a comparator to find the costs disproportionate was not legitimate. The Claimant had tried his best to get the police to take the case and his decision to institute the private prosecution was a last resort. The hours spent by each fee earner were considered and reductions were made to the principal handler and the Grade D assistants.

Points to take away

• Use of a London firm may be reasonable for a particular specialism and if the client has made such enquiries as can reasonably be expected of a person in their position.
• Travel to attend the client is not generally recoverable, I would suggest that this would turn on the facts and would be recoverable if there was a particular reason such as incapacity or the need for a site inspection.
• Multiple fee earners attending meetings and hearings will be vulnerable at assessment. The context of the meeting should be considered.
• Inter fee earner discussions are recoverable where it is necessary for delegation purposes. Again, consider the context of the meeting.
• Care should be taken when describing tasks associated with preparing bundles to show legitimate fee earning work rather than scanning and copying.

Helen Spalding is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at helen.spalding@clarionsolicitors.com or on 0113 288 5639.

During these uncertain times, communication is key. Clarion are in regular communication with the Senior Courts Costs Office to understand and share how they will be adapting to continue to service CoP cases.

Firstly, electronic signatures will be accepted. The SCCO still require the hard copy files of papers to undertake the assessment, however, they have extended the timescale for professionals to send the papers following e-filing from 5 days to 28 days, which will be a great help.

It will come as no surprise that the assessment turnaround will be delayed further by these challenges. The SCCO are working with a virtual costs office with cases being dealt with remotely wherever possible.

To help struggling firms, there is a move in the CoP to increase the interim payment to 85% for a full year’s general management charges. This will mean a change to Practice Direction 19B, which is under review. Further information about this will be shared as soon as possible.

Clarion are fully equipped during this time to continue working with professional Deputies to have their bills of costs drafted for assessment. If you have any queries, please contact Stephanie Kaye at Stephanie.kaye@clarionsolicitors.com or call 0113 3363402.