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.

 

 

Coronavirus (COVID-19) Edition

The Costs and Litigation Funding Team would like to assure you that during the current ongoing measures to prevent the spread of the COVID-19, whilst we work remotely, it is business as usual at Clarion. We are able to continue to provide our full costs service to you.  The whole team (25 of us now) are well equipped to work from home and will have full access to email and paper/electronic files, as normal. Everyone will also be accessible by telephone. Our contact details can be found here.

The Court’s announcements

1. The Lord Chief Justice announced on the 18 March 2020 that telephone and video hearings are now the default position during the coronavirus outbreak and has provided guidance here.

2. Lord Chief Justice announced on the 17 March 2020 that:

“The latest guidance from government on how to respond to COVID-19 will clearly have an impact on the operation of all courts in every jurisdiction. It is not realistic to suppose that it will be business as usual in any jurisdiction, but it is of vital importance that the administration of justice does not grind to a halt.

We continue to work closely with others in the justice system, including the Ministry of Justice and HMCTS, to work through the implications of the developing medical position for the operation of the courts.

Given the rapidly evolving situation, there is an urgent need to increase the use of telephone and video technology immediately to hold remote hearings where possible. Emergency legislation is being drafted which is likely to contain clauses that expand the powers in criminal courts to use technology in a wider range of hearings. The Civil Procedure Rules and Family Procedure Rules provide for considerable flexibility.

Our immediate aim is to maintain a service to the public, ensure as many hearings in all jurisdictions can proceed and continue to deal with all urgent matters.

In all things Judicial Office Holders are advised to liaise with leadership judges and HMCTS.”

3. Liverpool County Court has released advice to litigants that most trials and hearings will remain listed, however designated civil HHJ Judge Wood QC has agreed that “any fast track or multi track trial can be removed from the list to be relisted after 1^st June 2020 at the request of any party”. This does not require a consent order or application with fee. Whilst a brief explanation of the reason is necessary, the court will not require medical evidence nor will any request be refused simply because a party wants the matter to proceed. The Court expects trials to proceed only where all parties and witnesses are content for them to do so.

There have been instances where hearings in the Business and Property Courts have been adjourned, for example one hearing has been adjourned for “two months”, with a date TBC. The Judge rescheduled it out of his own initiative as a precaution.

We recommend that you check with the court if you have a trial or hearing listed within the next three months and what their current policy is.

Signatures 

CPR 5.3 provides that “Where any of these Rules or any Practice Direction requires a document to be signed, that requirement shall be satisfied if the signature is printed by computer or other mechanical means”. For users of Adobe, documents can be signed by selecting “Fill and Sign” in the bar at the right of the screen then selecting “Sign” at the top of the Screen. This will allow you to add a picture to use as a signature; this could be a scanned version of your signature, or a photo taken on your phone.

Please follow this link (page 2 of the pdf) to find more guidance to assist with this.

Service

The rules for service and limitation are currently unchanged. However, parties may extend dates for compliance with Rules, and limitation amnesties, and it is likely that Courts will allow applications for extensions. Parties should bear this in mind before rejecting requests for extension out of hand. Also, the usual rules for electronic service apply, however it is likely that Courts will look favourably on applications to serve electronically and therefore parties should be sensible about accepting service electronically and only refuse if there is a genuine reason why service by electronic means cannot be accepted. At present, the Courts only accept email filing up to 10 pages, however it may be possible to arrange electronic filing with courts and practitioners should check with individual courts as many have already implemented alternative processes.

For large files, parties can agree to file and serve by other electronic means, for example using Dropbox or any other secure file-sharing software. If service is anticipated over the next three months, it would be wise to put procedures in place now, and to agree them with opponents, to enable the smooth progress of cases.

The recent judgment by Hilder HHJ has ruled in the three linked cases of ACC, JDJ and HPP (ACC & Ors (2020 EWCOP 9)). The judgment concerns three separate sets of proceedings where each Deputy is connected by the same firm of solicitors. For ACC and HPP that Deputy is Irwin Mitchell Trust Corporation Ltd; for JDJ, the Deputy is a partner of Irwin Mitchell LLP.

In each case, the Deputy had embarked on litigation on behalf of the Protected Party and had instructed a further department within Irwin Mitchell to conduct the litigation. The common issue in each matter is whether, and in what circumstances, the Deputy can recover from the Protected Party’s funds which have been or are likely to be incurred in legal proceedings. There was no specific provision in the orders appointing the Deputy that either did grant or exclude authority to instruct another Solicitor or conduct proceedings.

Furthermore, due to the conflict of interest, each Protected Party’s in this matter was represented by the Official Solicitor as Litigation Friend. The Public Guardian was also been joined as a party to the proceedings.

It was accepted by the Official Solicitor that obtaining legal advice and instructing the Deputy’s own firm can sometimes fall within the general authority of the Deputyship order, but the order does not give authority to litigate. They argued it was in the Protected Party’s best interests that any advice be authorised specifically by the court and any advice sought is to be tendered out to different firms.

The Deputies position was that a property and affairs standard authorisation should be understood as including legal costs in relation to contentious matters but ‘falling short of conduct of litigation’. They contended “one of the advantages” of appointing a solicitor or solicitor-owned trust corporation as Deputy is that it provides the Protected Party with “ready access” of expertise from a full-service legal firm. They further contended where circumstances demanded urgent action, a Deputy should be able to issue proceedings and seek interim relief without specific prior authorisation from the court and thereafter, to apply for authority.

Hilder HHJ explained that proceedings have arisen because the court had concerns about what the Applicants regard as a reasonable interpretation of ‘general authority’. She added that the Applicants, the Official Solicitor and the Public Guardian all sought guidance. Whilst the three cases demonstrate a clear need for further amplification of the court’s approach, she confirmed that approaching the task should be taken with caution. ‘General’ authority is not susceptible to exhaustive definition (49). She then presented a series of questions which can be found in the judgment. These are as follows:

• What authorisation is required to conduct litigation on behalf of P? [51]
• What about further proceedings in the Court of Protection? [52]
• To what extent does ‘general authority’ encompass authority to take legal advice on behalf of P? [53]
• Where is the line drawn between seeking advice and conducting litigation? [54]
• What about urgent matters? [55]
• How should conflicts of interest be addressed? [56]
• What about cases where the deputy is not the instructing party? [57]
• What about acting as litigation friend? [58]
• What if P has capacity to give instructions for the work in question? [59]

A summary of conclusions to those questions are set out in the Appendix in the judgment, but the key observations below have caused a stir amongst professionals.

Specific authority is required to conduct litigation on behalf of the Protected Party [paragraph 51] except where the contemplated litigation is in the Court of Protection in respect of a property and affairs issue [52.4] or to seek directions in respect of a welfare issue [52.10].

Furthermore, where a Deputy has authority in respect property and affairs, such authority encompasses steps in contemplation of contentious litigation in the realm of that authority up to receiving the Letter of Response, but no further [54.4].

Hilder HHJ confirmed that ‘general authority’ of a property and affairs Deputyship order does not encompass seeking advice or other steps preliminary to litigation in respect of welfare issues; it does encompass making an application to the Court of Protection for further directions /specific authority in respect of welfare issues [54.6]. It also does not encompass steps in contemplation of an appeal against the decision of an Education, Health and Care Plan [54.8(b)].Professionals are concerned about delays at the court when obtaining this authority and the specific repercussions of this case concerning the recovery of legal costs. Hilder HHJ advised that, if circumstances arise where the protection of the Protected Party’s interests requires action to be taken so urgently that prior authority to litigate cannot reasonably be obtained, a Deputy proceeds at risk as to costs but may make a retrospective application for authority to recover costs from the Protected Party’s funds. There is no presumption that such application will be granted – each application will be considered on its merits [55].The concern of the potential conflict of interest when the Deputy instructs his own firm to carry out legal tasks is not a new issue, but one which has finally been clearly addressed in this judgment. Hilder HHJ confirmed that the Deputy must take ‘special measures’, including:

1. the Deputy may seek prior authority [56.7(a) – (e)];
2. the Deputy is required to seek – in a manner which is proportionate to the magnitude of the costs involved and the importance of the issue – three quotations from appropriate providers (including one from his own firm), and determine where to give instructions in the best interests of the Protected Party [paragraph 56.7(f)(i)];
3. the Deputy must seek prior authority from the Court if the anticipated costs exceed £2 000 + VAT;
4. the Deputy must clearly set out any legal fees incurred in the account to the Public Guardian and append the notes of the decision-making process to the return [56.7(f)(iv)].

Hilder HHJ further advised that specific authority is required to use the Protected Party’s funds to pay a third party’s legal costs, even if those costs relate to litigation for the benefit of the Protected Party [paragraph 57].Finally, if the Protected Party has capacity to give instructions for particular work, he will also have capacity to agree the costs of that work [59].

Hilder HHJ agreed that, in the three cases, the Deputies’ decisions to litigate were justified. Therefore, authority should be retrospectively granted to them. However, Deputies should not take this ruling to mean that authorisation will be granted after the event on other occasions. Judge Hilder stated that “appropriate authorisation should be secured in advance” due to the significant costs incurred in litigation (62.6). This judgment is significant in Court of Protection, providing clarity on litigation proceedings and referrals in house. It is a meaningful change for professional Deputies and we are yet to see the practical repercussions of the judgment. Where a Deputy is currently conducting litigation or will potentially be conducting litigation, we advise to apply to the Court to secure appropriate authorisation, as there is no guarantee that authorisation will be granted retrospectively. Whilst we have always recommended this, it is now essential that professionals obtain quotes from both internal and external practitioners when looking to obtain legal advice in another area of expertise, in order to justify the decision. This must be properly documented to avoid scrutiny in future. If Deputies do not adhere to the new processes in this case, there will be substantial costs repercussions.

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.

Further changes to E-Filing will be introduced from 17 February 2019. 

Following a recent review of e-filing practices by the SCCO, assessed bills lodged for certificate must be tallied. In instances where the Costs Officer has not already tallied the bill, it will be the solicitor’s responsibility to do so. Documents lodged for the issue of a certificate (summary sheet, assessed bill and Final Costs Certificate) must be filed under the heading ‘Filing – Certificate Summary Sheet (COP)’ and not ‘Filing – Acceptance of Provisionally Assessed Bill’ or any other option. Please note these documents must be filed as separate documents. Pending approval, the SCCO hope to circulate a basic guide on lodging documents for certificate in the near future. These changes are introduced to streamline the e-filing process.

The SCCO don’t require every entry in the bill to be tallied but simply the allowed figures written on the bill summary page situated in the middle of the bill of costs, detailing the profit costs, VAT, disbursements etc. The SCCO will eventually be looking to get rid of the separate bill summary sheet which will prevent duplication, but for now, both are required.

If you have any queries or would like to propose topics for future blogs by Clarion, please contact Stephanie Kaye at Stephanie.kaye@clarionsolicitors.com or call on 0113 3363402.