Costs post-death in the Court of Protection – SCCO Note 13/05/2024

Ellie Howard-Taylor1 Comment

Today, the SCCO have released a notice regarding post-death costs in the Court of Protection. It comes following a consultation with the Court of Protection (COP) on the correct way to deal with costs after the death of P.

 Costs “up to the date of P’s death” are covered by the deputyship order – the relevant COP Rules and precedents on this are clear and no further order is needed for any costs incurred whilst P is alive and lacks capacity, to be assessed.

The COP’s substantive jurisdiction ends upon the death of P, the COP have no jurisdiction to make an Order about costs incurred after the death of P. COP Rule 19.11, which states “An order or direction that costs incurred during P’s lifetime be paid out of or charged on P’s estate may be made within 6 years after P’s death.” is expressly limited to costs incurred during the lifetime of P for this reason.

The note outlined that Costs Officers and Judges who assessed any COP bill containing costs incurred post death, will strike through the work and annotate the bill with the following wording:

 ‘Costs post-death are not covered by the existing deputyship order. The COP’s substantive jurisdiction ends with the death of P. As the COP has no jurisdiction to make orders about costs incurred after the death of P, the SCCO therefore has no jurisdiction to assess these costs under the COP Rules 2017.’  

Previously, we saw Deputies were allowed around £1,500 plus VAT worth of work, as reasonable, for dealing with matters following the death of P. This work would tend to include concluding their involvement as Deputy and passing the matter to probate.

However, it is now clear that Deputies will not be paid for any work post death of P.

The SCCO ask that if any bill has already been filed where costs are incurred following the death of P, Deputies notify the SCCO of the date of P’s death as soon as possible by email to SCCO@justice.gov.uk. Where bills have not been filed for assessment, Deputies are to ensure this information is provided at the beginning of the bill for assessment.

The latest update on COP assessment delays from the SCCO

Lydia MarshallLeave a comment

The SCCO has released a new update providing a further update on the current turnaround for COP assessments and e-filing.

In summary, the Costs Officers are currently assessing bills received around the middle of June 2023, and the Admin Team are working on returning bills that have been assessed, and were received by them in the 3rd week of April 2024.

With regards to e-filing, new filings submitted around the 2nd week of January 2024 are currently being dealt with, and final costs certificate requests received in the 4th week of April 2024 are being processed at present.

Whilst the SCCO have asked customers not to chase any bill that falls into the 15 month window, as outlined above, we recommend keeping a record of when bills were submitted and accepted at the SCCO and to chase anything that is now greater than 15 months.

You can contact the SCCO directly at scco@justice.gov.uk with any queries or speak to your Cost Draftsman who may be able to assist. When contacting the SCCO directly, please provide the SCCO reference for a quicker response.

Please see below the notice directly from the SCCO with guidance on what to expect with regards to the delays.

Notice-to-COP-Customers-29.04.2024Download

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

Costs reduced by 54% at Summary Assessment: Leading and/or Junior Counsel?

Helen ApplebyLeave a comment

Summary assessment takes place following a trial or hearing. It is a broad brush approach to deciding how much should be paid. The parties provide brief details of the costs they are claiming, via a costs schedule/N260, the Judge hears from the parties and then reaches a decision.

Saudi Arabian Airlines Corporation v Sprite Aviation No. 6 DAC [2024] provides a brief in-sight as to what may be considered during the Summary Assessment process.

Christopher Hancock KC sitting as a High Court Judge had considered a preliminary issue and agreed with the Defendant’s submissions that the matter should be reserved to the trial Judge. As a result, the Claimant was ordered to pay the Defendant’s costs.

The Defendant’s Bill of Costs totalled £42,267.31. The Claimant argued that this should be reduced to £9,540.92 for several reasons:-

(1) Hourly rates (the rates claimed exceeded Central London SCCO Commercial Guideline rates);

(2) Inappropriate use of grade A fee earners and failure to delegate. The Claimant argued that some work should have been delegated to more junior members of staff;

(3) Excessive time spent; and

(4) Excessive Counsel’s fees on the basis that the hearing did not require two Counsel. Junior Counsel alone would have been sufficient and that if junior Counsel alone been instructed, the fees could have been reduced from £22,000 to about £5,000, a saving of £17,000.

In response, the Defendant stated that the Claimant’s arguments took no account of the fact that there had had to be two hearings and not one, through no fault of the Claimant or Defendant. It was the Defendant’s view that the criticism of the hourly rates was misplaced given the very specialist nature of the dispute and the fact that both parties were instructing similar firms in this regard. Furthermore, it was their view that the choice to use higher rate fee earners served to reduce rather than increase costs, because those fee earners had enjoyed a closer contact with the dispute.

Finally, in relation to utilising both Leading and Junior Counsel, it was the Defendant’s submission that leading Counsel had conducted the advocacy at the hearing itself with Junior Counsel undertaking the additional tasks.

The Judge considered the issues. He adopted a broad brush approach and reduced the Claimant’s costs to £22,000.00. His reasoning for this reduction was that he remained of the view that only Junior Counsel was necessary and therefore struck out Leading Counsel’s fees. Given the significance of such a reduction, the Judge was content to determine that no very significant reduction should be made in relation to the other points (i.e. hourly rates/time/delegation).

Clarion’s Costs and Litigation Funding team and can be contacted at civilandcommercialcosts@clarionsolicitors.com.

 

Update from SCCO on COP assessment delays

Lydia MarshallLeave a comment

Please see below an update notice released by the SCCO, providing a further update on the current turnaround for COP assessments.

In summary, the Costs Officers are currently assessing bills received around the beginning of June 2023, and the Admin Team are working on returning bills that have been assessed, and were received by them in the 2nd week of April 2024.

With regards to e-filing, new filings submitted around the end of December 2023 are currently being dealt with, and final costs certificate requests received in the 2nd week of April 2024 are being processed at present.

Please see below the notice directly from the SCCO with guidance on what to expect with regards to the delays.

Notice-to-COP-Customers-15.04.2024-1Download

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

MA & AA, Re (Re Section 21A of the Mental Capacity Act 2005) [2023] EWCOP 65

Leah MorrisLeave a comment

Background

The case of MA & AA, Re (Re Section 21A of the Mental Capacity Act 2005) [2023] EWCOP 65 concerned an 84 year old woman who was diagnosed with dementia (MA) and an 89 year old man who has been diagnosed with dementia, epilepsy, heart disease and cerebrovascular hypertension (AA). MA and AA are husband and wife and had been married for 63 years. Following their diagnoses, the parties were moved into the same care home. In due course, this care home could no longer meet the needs of MA, and therefore she was moved to a different placement.

A plan was then made to reintroduce contact between MA and AA via telephone, video call and then in person. After only two in person contact sessions, the local authority issued a COP9 application to end all contact, by any means, between MA and AA on the grounds of distress and the risks posed by MA to AA at the end of contact sessions. This application was strongly opposed by MA, and the judge was asked to decide on future care and residence, whether were to be any further attempts at contact and whether a removal of contact represented a breach of rights under Article 8 of the European Convention on Human Rights.

Considerations of the Judge

The Judge considered various issues surrounding the case including care and residence, contact, declaration, the positions of the parties and the law, including capacity and best interests. The Judge also reviewed the case of HH v Hywel Dda University Health Board & Ors [2023] EWCOP 18 which set out how the Court should proceed in a situation involving two Protected Parties where the best interests decisions are interconnected.

The options available on behalf of MA were;

  • MA remaining at placement 2 and AA remaining at placement 1; or
  • MA remaining at placement 2 and AA residing at placement 3.

Decision

The Judge stated that ‘it is universally accepted that the starting point in this matter is that wherever possible, a husband and wife should have contact with each other’ but the evidence shows, sadly, AA no longer recognises MA. Given this analysis, he decides he had ‘not found any evidence that the respondents have acted in a way which is disproportionate and incompatible with a convention right.’ Therefore, it was concluded that due to MA’s erratic behaviour during face-to-face contact and AA’s lack of interest in video meetings, it was determined to be in both AA and MA’s best interests that they each remain at their current placements and for them to not have any form of contact at this stage.

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

J v Luton Borough Council & Ors (2024) EWCA Civ 3

AshleySmithLeave a comment

The recent case involved J (the Protected Party) and his lack of capacity in deciding whether he could travel abroad with his family in order to enter into an arranged marriage and engage in sexual relations.

Background

J and his family were planning to travel to Afghanistan to visit their family who resided there. The reason for their travel was to visit family but to also enter into arranged marriages for both J and his sister. In 2022, J’s sister requested support in bringing J’s soon to be wife to the UK. However, a mental capacity assessment confirmed that J did not have capacity to enter into a marriage or have sexual relations.

The case

J’s family made an oral application in order to confirm that J was allowed to travel to Afghanistan with the family. The application was denied on the grounds that there had been a ‘Forced Marriage Protection Order’ placed on J. The Judge agreed to meet with J and collated oral evidence from J’s father, his social worker and J’s sister. The appeal confirmed that the decision would not be overturned due to the clear and significant risks for J and any other British nationals travelling to Afghanistan, this was in respect of the decision made by ‘The Foreign, Commonwealth & Development Office’ against travelling to and from Afghanistan which was targeted towards the general population.

The family of J had appealed the decision in reference to the decision failing to take J’s wishes and values into consideration and that the decision would go against J’s Article 14 rights. However, it was argued that the safety of J and his lack of capacity did not deem him able to engage in a marriage or sexual relations and therefore the decision was in his best interests.

 Conclusion

The Court upheld the decision against J travelling to Afghanistan for the arranged marriage. They had reviewed the risks involved in travelling to Afghanistan and the importance of travelling for J and his family in order to reconnect with J’s family. The Judge also concluded that J’s capacity could possibly be maximised with further education and that further decisions regarding travel should be dealt with in a pre-planned way in the future and would be further reviewed at the appropriate time.

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

A Party’s impecuniosity is not a reason to depart from the normal position on costs

Katie SpencerLeave a comment

In the case of K v W (Respondent’s Costs on Application for Permission to Appeal) [2023] EWFC 300 (B) (25 October 2023), HHJ David Williams outlined the costs implications for unsuccessful appeal attempts within the Family Court. The ruling ordered the Mother to pay the Father’s legal costs totalling £6,021.

The Appeal

Within the judgment, HHJ David Williams referred to the Appellant and Respondent as the Mother and Father. The Mother made an oral application to appeal the decision of the District Judge at the handing down of judgment hearing, which was refused. The Mother filed an Appellant’s notice for leave to appeal.

The Father was required to file a skeleton argument in response to the appeal and attend the hearing. At the permission to appeal hearing, the Appellant’s notice was refused on all grounds.

Costs of the Appeal

The Father filed a Schedule of Costs in advance of the hearing seeking a costs order against the Mother in the sum of £6,021. The Father submitted that as his attendance at the hearing was requested by the Court and due to the application being unsuccessful, a costs order should be ordered in his favour. The Father’s Schedule of Costs included £2,000 for Counsel’s brief fee and £1,000 for drafting the skeleton argument.

The Mother opposed the costs order and submitted that she had already paid the sum of £20,000 to Dr Proudman for drafting her skeleton argument and a £8,000 brief fee for attending the hearing. The Mother further submitted that she had been struggling financially and had only £100 in her bank. Nonetheless, her financial contributions to her own legal costs raised questions about her ability to pay the costs submitted by the Father.

Paragraph 4.24 of Practice Direction 30A states:

“Where the Court does request –

  • submissions from; or
  • attendance by the respondent,

the court will normally allow the costs of the respondent if permission is refused.”

In this case, the Court requested that the father file a skeleton argument and attend the hearing. For the Court to depart from the usual position as set out in the Practice Direction above, there must be a compelling reason. The Court held that “The mother’s alleged impecuniosity is not a reason to depart from the normal position on costs, although it may be relevant to how or when any costs order is to be satisfied.”

Furthermore, HHJ David Williams stated “it is clear from the mother’s own case that she either had or has been able to access funds of circa £30,000 in order to pay the fees of her counsel, Dr Proudman. If the payment of those fees has brought about the mother’s impecuniosity, as alleged, that cannot be a reason not to make a costs order in favour of the father.”

The Judge held that as the Mother was previously refused permission to appeal and knew the risks of having to pay the Father’s costs, there was no reason for the Father to be left out of pocket. When assessing the costs, the Judge concluded that the costs claimed by the Mother were significantly higher than the costs claimed by the Father. The Judge made reference to both fees for the skeleton arguments, noting that the Mother’s was 10 times more than the Father’s. An order for costs was ordered in favour of the Father and the full sum of£6,021 was held to be reasonable and proportionate.

Katie Spencer is a Paralegal Apprentice in Clarion’s Costs and Litigation Funding Team. You can contact her on 07741 988925 or at katie.spencer@clarionsolicitors.com.

Pre-judgment interest allowed at 2% above the Bank of England base rate

Ellena HunterLeave a comment

Asturion Foundation v Alibrahim [2024] EWH 757 (Ch) concerned a very long-running action (9 years) during which the Defendant had incurred about £6.6 million in costs. The Claimant sought recovery of the title of an English property that had been transferred to the Defendant, by a board member of the Claimant.

Mr Justice Johnson found that the transfer of title was made within the purposes of the Foundation and the transferor had acted within the scope of internal competencies. It was agreed by the Claimant that the Defendant was the successful party and was therefore entitled to her costs.

The Defendant had failed on some points and therefore, the Claimant sought a percentage deduction to the Defendant’s recoverable costs to account for those unsuccessful issues. The Defendant conceded that a percentage deduction should be made but did not agree with the extent proposed by the Claimant. Ultimately, Mr Justice Johnson made a deduction of 15% from the Defendant’s otherwise recoverable costs.

The parties addressed Mr Justice Johnson on the issue of interest on costs. It was the Defendant’s position that interest should be paid on the costs expended by her since the dates of payments of the relevant invoices rendered by her solicitors. The Defendant emphasized that due to the litigation spanning a period of 9 years, she had been ‘out of pocket’ for a considerable period and she should therefore, be entitled to a payment reflecting the time value of money. This was calculated by the Defendant’s costs draftsman using a rate of 2% above the Bank of England base rate which was argued to represent a reasonable approximation of the Defendant’s likely costs of borrowing.

The Claimant argued that there should be suspension of payment of judgment debt interest until it had a fair opportunity to decide what sums it accepts should be payable, as a detailed bill of costs had not yet been received.

The Judge saw merits in both parties’ arguments.

In terms of pre-judgment interest, it was noted that this was within the Court’s discretion. The Judge determined that as the Defendant had been ‘out of pocket’ for a significant period of time, it would be unfair for her not to be compensated accordingly. Therefore, the Judge ordered that pre-judgment interest be paid at 2% above base rate from time to time. Interest was not, however, awarded during a 2.5-year period in which the proceedings were in a ‘state of suspense’ pending determination of the Defendant’s strike out application that was eventually unsuccessful.

The Judge did agree that the Claimant should be afforded further time to consider the bill (when received) and to determine what it accepts as reasonable and proportionate. Therefore, Mr Justice Johnson suspended the accrual of judgment debt interest for a period of 3 months but allowed pre-judgment interest to continue.

Ellena Hunter is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

PSG Trust Corporation Limited v CK [2024] EWCOP 14

hawamayetLeave a comment

This case concerned how a Property and Affairs Deputy should approach the issue of whether to inform P of the value of their Civil Litigation settlement in the case in which knowledge of the same may make them vulnerable.

The applicant, PSG Trust Corporation Limited, acts as the Deputy for both CK and NJ and highlighted the predicament which deputies regularly face as there is little guidance regarding informing P of the value of their settlement.  After reviewing what relevant case law there is, Hayden J set out some of the factors to be weighed in making the decision:

‘The ‘matter’ or decision is whether P wishes to request the value of her funds, and the factors relevant to her capacity to make that decision are likely to include her understanding of:

i. The nature of the information in question;
ii. The risks of obtaining it;
iii. The risks of not obtaining it;
iv. The benefits of obtaining it;
v. The benefits of not obtaining it.’

Hayden J then applied the principles to the cases before him. CK was involved in a traffic accident and as a result of her injuries has vulnerabilities. Hayden J concludes CK lacks capacity to take the decision herself but has clearly expressed her wishes that she should know the amount of the settlement, so that she can make a Will amongst other things, and therefore declares that it is in CK’s best interests to be told. NJ has been diagnosed with Cerebral Palsy and other conditions, and there was a history of financial abuse, making NJ vulnerable to exploitation. Accordingly, Hayden J finds NJ lacks capacity and that it would not be in her best interest to be told of the amount of the award.   

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

A substantial reduction of costs on the indemnity basis in a summary assessment

ujjainimistryLeave a comment

Mrs Justice Knowles summarily assessed the costs of a dismissed committal application, made by the wife in Alvina Collardeau v Michael Fuchs & Anor [2024] EWHC 642 (Fam). The costs of the First and Second Respondents were assessed on the indemnity basis, but they were substantially reduced for the reasons set out below.

Indemnity Basis:

Mrs Justice Knowles saw ‘no justification for departing ’’ from the principle that indemnity costs are usually imposed in contempt proceedings, and she, therefore, assessed the costs on this basis. The Judge noted that the applicant’s case was ‘weak and evidentially flawed’’ as well as being ‘improperly motivated and disproportionate’.

CPR 44.4(1)(b) outlines the factors to be considered in deciding the amount of costs to be awarded when assessing on the indemnity basis. Costs will be allowed if they are not unreasonably incurred, or they are not unreasonable in amount; any doubt will be resolved in favour of the receiving party. The Court do not need to have regard to proportionality when assessing costs on the indemnity basis. This means that the receiving party is likely to obtain a higher percentage of their costs claim on assessment than if costs were assessed on the standard basis.

Despite Mrs Justice Knowles ordering that the costs be assessed on the indemnity basis, she did determine that the costs incurred by both respondents were ‘manifestly excessive and unreasonable’. The total spent between both respondents was £510,876.90. The Second Respondent submitted that he was entitled to have regard to the wife’s profligate approach to litigation costs when instructing his own legal team. The Judge deemed this as a ‘wholly unreasonable approach, which encourages exorbitance, if not profiteering’.’ This Respondent’s total costs exceeded £330,000.

The First Respondent’s costs were reduced by 33% as it was not justifiable to have 2 of each grade of fee earner preparing the case, charging a significant rate. Counsel’s fees were also reduced by 50%.

The Second Respondent’s fees were reduced by 44%. But this was still considered unreasonably high and excessive. There were 3 Grade A fee earners on this matter, which was deemed unnecessary. The costs associated with any obtained expert evidence was deducted in full as the court did not grant authorisation for expert evidence to be adduced.

Mrs Justice Knowles considered all features of the case and in order to reach a just decision, costs were assessed on an indemnity basis, but the costs were heavily reduced as they were considered to be wholly unreasonable.

Ujjaini Mistry is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at CivilandCommercialCosts@clarionsolicitors.com