In Gempride -v- Bambrah [2018] EWCA Civ 1367 the Court found that a solicitor had mis-certified a bill of costs. As a result of that finding, the firm was required to self-report to the SRA.
The SRA has now published its findings from that investigation. Here, Andrew McAulay looks at 5 Key Points for certification of a bill.
Andrew McAulay is a Costs Lawyer, a Partner at Clarion, and head of the Costs and Litigation Funding Department.
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 third participant for Lockdown Lowdown is Francesca Gardner from Kings Chambers, who has chosen a hectic time to return from maternity leave!
How has the Court of Protection adapted to lockdown?
The COP has adapted extremely well, and at speed to the pandemic. The Vice President has been instrumental in ensuring that the court continues to function. Hayden J has released a number of helpful guidance documents. The reality is that there will be some cases that will be delayed but there is a clear and concerted effort from the court’s to ensure that urgent cases are being properly determined. For example, within days of the lockdown measures being announced by the government, the COP heard a Serious Medical Treatment case (over a number of days) via Zoom.
I know of and am involved in many cases that are being and are scheduled to be heard over the coming weeks.
What impact do you think this will have on professional Deputies?
I am optimistic that there will not be a significant impact upon deputies, save for the challenges in maintaining contact with P and any delays that may be faced as regards court proceedings. HMCTS has issued its ‘family business priorities’ for April 2020 setting out what work must be done, what work will be done and what work HMCTS will do its best to do. Property and Affairs work falls under the work that court ‘will do it’s best to do’, whilst this may be frustrating to deputies I am aware of several P&A cases being heard both in the regions and in London so whilst there may be delays I would hope that deputies will still have proper access to the court’s should they need it on behalf of P.
Have you learnt anything so far from the pandemic?
The importance of slowing down, as lawyers we work at 100mph and I hope that lockdown has forced us to re-evaluate a little and find a better balance going forward. I am thinking ‘pigs might fly’ as I write this.
Have there been any reoccurring issues that Deputies should be aware of?
The main issue in my view and that, which I am aware of, is contact with P and ensuring that communication between P and the deputy continues. It is important that deputies think creatively during the pandemic to ensure that they (and others) can maintain contact with P. For example and where possible the purchase of an iPad or a request to the staff at the care home and/or support staff to support P to use Skype may be of real benefit. In BP v Surrey County Council 2020 EWCOP 17, the Vice President of the Court of Protection, Hayden J, reiterated the importance of P maintaining contact with others and how this should be approached based on the specific needs of the person. For example, telephone contact would not be appropriate where the person is deaf, but Skype maybe and they should be supported to use that facility.
Do you think there will be any reoccurring issues that Protected Party’s face as a result of this?
I would like to think not but I think delay will be inevitable in some cases, particularly cases that are none urgent in nature.
What do you think Deputies should be thinking about?
Whilst it may be a very difficult time, deputies must remember that their roles and responsibilities remain the same throughout the pandemic, that includes in circumstances where the deputy may be self-isolating in line with the government guidelines. The Office of Public Guardian has provided some guidance for deputies during the pandemic, within the guidance it states: ‘If you are self- isolating or shielding, you must continue to make decisions for P. You cannot ask anyone else to make those decisions for you.’ However, attorneys and deputies can make a decision and ask someone else to carry it out. The guidance reminds deputies that they do not have to step down in their role simply because they are unable to visit the person.
How have you been keeping busy during lockdown?
My little boy keeps me very busy, but returning to work has also kept me busy. I try to exercise alone as regularly as I can. Running has always been my ‘go to’ for exercise and its great for clearing your head, particularly with all that is going on at the moment.
What are you most looking forward to after lockdown?
Spending time with family and my little boy, it has been hard that no one has been able to see him so I am very much looking forward to that!
Clarion would like to thank Francesca for taking part in Lockdown Lowdown and for her helpful insight. Coming up in the series, we will be hearing from Ria Baxendale from the OPG. 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.
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. Our second participant for Lockdown Lowdown is Master Peter Haworth from the Senior Courts Costs Office.
I originally thought we wouldn’t cope very well at all, and thought we would lock up shop at the SCCO, but that hasn’t happened. It’s not just skeleton staff, but staff working from home and a team in the office on a very detailed rota. We have a dedicated COP team of at least 5 people in today and 6 people in tomorrow, so we are finding ways to continue whilst respecting social distancing. We have managed to obtain laptops which have been given to Costs Officers so, in addition to the team in the office, Costs Officers are dealing with work at home. We have 8 Costs Officers and all 8 of them are working, be it remotely or from the office and the people in the high risk category are having work delivered to them as opposed to collecting it themselves. The team really have worked hard to adapt and I’m tremendously proud of them. The judiciary are also getting on surprisingly well in lockdown. We’ve had a number of Zoom and Microsoft Teams calls which have been very successful, and it seems that the judiciary has moved on 50 years in 2 weeks. I don’t think we will ever go back to ‘normal’ and I suspect that, going forward, we will continue to work in this way wherever it is appropriate to do so. The Senior Costs Judge doesn’t want things to grind to a halt so, wherever possible, we are dealing with things via Skype, Zoom and Microsoft Teams. I’ve had 2 full-day hearings for two substantial costs matters and it works well. I’m fixing more Microsoft Teams meeting where I hope to take live evidence, which is something that I would not have thought possible. With COP work, one of the benefits of the e-filing system that was introduced in January is that I can access this sitting at home, pick up cases and deal with them without too much difficulty. Where I need papers, the majority are being sent to me via the local County Court using DX and I pick them up from there. Also, in COP, I have had a couple of Costs Officers who have said that provisional assessments have not been accepted, and the solicitors have requested an oral hearing, so I’ve been able to simply access the file using the e-file system and list them without delay. The Costs Masters meet virtually on a Friday morning to discuss work loads too, which is useful. We’ve had one Master off ill, but others have picked up the work in his absence. I thought it might be a prolonged holiday for us all but that’s not happened!
You won’t believe this but, whilst I’ve parroted on, I’ve had an email with an update so I have the exact figures, hot off the press for you! As of the 27th of April 2020, straight from the horse’s mouth, we have 656 cases in the office up to 7 weeks old, awaiting assessment. We have a further 257 waiting for supporting papers from the solicitors which have been e-filed and accepted and a further 464 in the e-filing queue waiting to be processed by the e-filing team. Essentially, we have a backlog of 1,200 cases. I’m not holding anything back from you, so hopefully you can appreciate the full picture. We have one Costs Officer who has been ill and there are 10 cases awaiting collection from them. In addition, we have 195 Final Costs Certificates waiting to be authorised, which are being prioritised at the moment above the assessments. We are in a position to deal with things at home, but the bottleneck is the admin team processing the e-filing. We are working with a 50% admin team in the office due to social distancing measures, so that is where the difficulty lies in the administration of all of those cases. I would hope that, once the rules are relaxed, we will have a full team in the office again. We have seen turnaround a lot worse than this, but I appreciate even more so as a former solicitor that cash flow is king, and I’m the first to understand that. If there is anything we can do to push this through, we will. E-filing proved to be a lot more complicated than anticipated and it has slowed things down, for which I sincerely apologise on behalf of the office.
We can work virtually and electronically, rather than with high chairs and quill pens! We will have to put it all together when we get back to normality and find a new way of working. I think that the lockdown experience will provide more benefits in the years to come and, to my mind, we will move forward a lot quicker now. The majority of firms don’t work with paper files anymore so, as night follows day, it must mean electronic files move up the queue for COP, but I don’t know what the timescales are for that. We have trialled this and the Costs Officers were happy to access the solicitors’ system to carry out the assessment but, for this to be successful, there will have to be protocols and security measures. Provided we can meet those, it will move forward. There is also the electronic bill which you know about (Stephanie Kaye and Andrew McAulay are part of the committee preparing a COP electronic bill). COP will not need the same level of complexity as the current electronic bill for inter partes work, so I would hope to see an electronic bill in motion by the end of this year, or early next year and the the rest will follow. So many questions will be up for grabs and only time will tell, but I’m sure the real impact will be known when we get back. It will push us out of the Victorian times and move us into the 21st century.
The hiccups have been loading it all up in the first place. With no electronic bill, it’s having to be scanned into the system and a paper copy prepared for assessment, then scanned back out to the solicitor. All the extra admin had meant that the bottleneck was even worse. Although the bill will have to be scanned to obtain a copy, the Costs Officers are sending a paper copy back to the solicitor after assessment and, from that point in time, the solicitor can electronically obtain the Final Costs Certificate. I hope this will solve some of the issues but this will be an ongoing problem, until the introduction of the electronic bill. From my own experience, the electronic bill is so much easier and it will speed up the process considerably in COP cases.
Yes, they are answering the phone. You might have to wait a little bit longer due to fewer people in the office, but there are Cost Officers and Clerks available. If they can’t answer the query, they will email the Master who might email the representatives directly, which is speeding things up. Providing they are accredited legal representatives and not parties, I am more than happy to work in this way, as are my colleagues.
Yes. This is not in the public domain, but all I can say is that there is some movement towards a sort of ‘bundle bank’, which would mean that the SCCO is able to access an electronic bundle to carry out an assessment, rather than interrogating the solicitor’s system, which has been trialled already. That’s something that is being considered, and I’m sure lockdown will accelerate moves to electronic working.
We will wait and see what the responses are from the MOJ on that point. We can then take a fresh look at the guide knowing the full picture. Obviously, any move to the electronic bill or electronic files of papers will mean that the guide is updated too. It will be a work in progress.
I’ve done COP work in practice for many years. In 2006, I joined the SCCO and I couldn’t have been handed this work any quicker. I’ve worked almost exclusively from 2006 until last year or the year before on COP. Master James and Master Whalan will deal with COP after I retire. I think the senior judges would like all costs judges to deal with every aspect but in my mind, COP is specialist and you have to know what you’re doing, so I think it’s best kept with 2 or 3 judges. As for my retirement, I had planned to go on the 30th of September but in light of the current situation, I may find myself here until Christmas. The plan is to do more of what I enjoy, including sailing and hot air ballooning. A lot of my ballooning is abroad so I suspect even after lockdown, there will be difficulties with this. I might have to stay in the UK, although it’s tremendously difficult to fly a balloon in British weather! In 2021, I plan to take part in a balloon event across the English channel. I’ve done it once and I’d like to do it again – it’s much quicker than the ferry!
I felt that staying in a flat in London wouldn’t be ideal so I’ve come back up north. I’ve spent more time with Mrs Haworth than I have in the last 15 years! The north is a pretty part of the world so, when I haven’t been working, I’ve been out walking or doing things in the garden, albeit my work in the garden mainly involves supervising Mrs Haworth!
Meeting friends and going to the pub!!
Clarion would like to thank Master Haworth for taking part in Lockdown Lowdown. He and the SCCO continue to work extremely hard to service Court of Protection Costs work during this time. Coming up in the series, we will be hearing from Francesca Gardner from Kings Chambers and Ria Baxendale from the OPG. 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 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
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.
On behalf of the Costs and Litigation Funding Department at Clarion, we would like to thank all of our clients for being understanding and supportive during these uncertain times.
As we all are still adapting to the ‘new norm’, it can often be difficult to find the motivation and we appreciate some days may be more challenging than others. With that in mind, the team have put together some of our top tips for working from home.
As we are now a large team with 25 people, it’s highly important to keep in touch with each other and to check in with one another on a regular basis. With this in mind, we have arranged video calls with the whole team to give us a chance to talk about work and see each other, just as if we were in the office. Once a week we have a social call too, which allows us all to stay connected.
Hopefully our top tips can help you get to grips with working from home. For any further queries, please contact Ellie Howard-Taylor on ellie.howard-taylor@clarionsolicitors.com.
This blog forms part of a series of weekly interviews with several professionals during lockdown. It is aimed to inform Deputies and their teams about how each organisation within the field of Court of Protection has adapted to Covid-19. Our first willing participant for Lockdown Lowdown is Clarion’s very own Clare King. Clare is a Legal Director at Clarion Solicitors and leads our Court of Protection Team.
We have had to find ways of supporting our clients in place of seeing them in person. Care providers have generally been brilliant, with several companies accepting bank transfers from us on behalf of clients so that they can draw out cash and deliver it to clients to pay for shopping and other services. We have also had to be creative with processes such as mental capacity assessments and preparation of applications, which mercifully can be signed electronically for now, allowing some applications to still be lodged.
A lot of our day to day work has ground to a halt as the COP is only dealing with urgent cases; Adult Social Care are operating a vastly reduced service; neither we nor other professionals such as case managers can actually visit clients, and lots of supporting services have stopped – community groups, gardening and property maintenance etc. We are just trying to ensure that our clients are safe and have food, accommodation and basic care services. That is all we can do. On the plus side, care homes have been forced to accept bank transfers for pocket money for residents so hopefully when this is all over, that will remain and negate the need for lawyers to go out just to drop cash to care homes, which we can’t generally recover the cost of!
People are incredibly generous with their time and resources to ensure that people with care and support needs are safe during the pandemic. Also, people are suffering a great deal with distress over not being able to visit loved ones in care homes which has been very sad to witness; it has reinforced to me how loved people with dementia are, despite all the changes (and challenges) that the disease can bring.
Very sadly we have lost two clients in one weekend from the COVID-19 virus and proper funerals cannot be held. I do not imagine that they will be the last so I think we will see this again and again. This virus has got a great deal to answer for.
Yes – we have all found ways to continue to work with our clients around the demands of working from home with families! Members of our team are working really hard to continue to support clients including some very early mornings and some very late nights when small children are in bed!
Quite to opposite – Lynsey Harrison had a day long hearing in the Court of Protection using Skype for Business which was brilliant. They have had to prioritise certain cases but that is wholly understandable.
Telephone calls and more telephone calls! Plus heavy reliance on the superhero home care workers and care home workers. NHS frontline staff are heroes but so are the people who are quietly continuing to care for some of the most vulnerable people in our society during this crisis.
The PDF have been holding weekly meetings that I haven’t actually been able to attend yet due to pressure of work but the option is there and it is appreciated. Also, Practical Law have done a great guidance note that pulls together all the resources so together with the very regular guidance issued by HMCTS there is ample support for professionals out there.
How did I have time to come to the office?! Between work, family, jobs in the house and garden, Zoom calls with family, friends and colleagues, and the emergency community network I have helped to set up, there isn’t any time! My social life (albeit on a screen) has never been so busy!!
Racing down south to have a massive actual hug, as opposed to a virtual one, with my mum, dad and sister and then seeing my brother as soon as flights to Spain are reinstated as I miss them desperately. On the plus side, we are all safe and well so far.
Clare King and her team continue to work remotely to support their clients. If anyone has any questions for Clare, please contact her at clare.king@clarionsolicitors.com
Coming up in the series, we will be hearing from Francesca Gardner from Kings Chambers, Master Haworth from the SCCO and Ria Baxendale from the OPG. If you would like to suggest another interviewee for Lockdown Lowdown, please contact Stephanie Kaye at stephanie.kaye@clarionsolicitors.com or call 0113 3363402.
The CPRC have released minutes of their latest meeting. The committee has provided further information regarding the proposals and options relating to revisions to CPR r3.15 and PD 3E, please follow this link to see our previous update.
CPR r3.15 will be re-drafted stating that revisions to budgets are made promptly rather than the initial suggestion that revisions are made without delay. There will be further amendments to practice direction 3E with the introduction of a precedent T and accompanying rules in relation to the completion of the same. The precedent T will provide much needed structure regarding the process of revising budgets and we are expecting that it will outline how to revise budgets. The intention is that these updates will feature in the October 2020 update to the rules.
Please do not hesitate to give me a call or email if you have any queries regarding revising your budget or any other cost management requirements. More detail regarding the importance of revising the budget can be found in our previous blog here. Remember that the rules provide for incurring 2% of your budget in respect to all cost management matters which includes monitoring and revising budgets.
Sue Fox is a Senior Associate and the Head of the Costs Management team in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact her at sue.fox@clarionsolicitors.com and 0113 336 3389, or the Clarion Costs Team on 0113 246 0622.
