Fixed Costs and Remuneration of Professional Deputies

Laura SugarmanLeave a comment

On 18th June 2025, the Office of the Public Guardian issued new guidance in relation to fixed costs and remuneration of professional Deputies. The purpose of the guidance is to set out the general principles regarding fixed costs and the Public Guardian’s position on issues relating to fixed costs.

As you will be aware, rule 19.13 of the Court of Protection Rules confirms that Deputies can be remunerated for costs they incur when performing their duties as Deputy. The Court may order that the Deputy is allowed to take fixed costs. These are outlined in Practice Direction 19B (PD19B), which was recently updated, on 1st April 2024. Whereby the management period ended before 1st April 2024, the rates set out in the previous PD19B would apply, however if the period covered by the fixed costs ends on or after 1 April 2024, the rates outlined in the latest version of the Practice Direction apply. Generally speaking, a management period would run on an annual basis, however this guidance confirms that if the period is less than a year (for example if there is a change in Deputy or P passes away) the fixed costs claimed should be apportioned accordingly.

It is important to ensure that if you want to have your costs assessed but the Court Order only allows for fixed costs, the Deputy will not be allowed to take any costs higher than fixed costs as per the case of The London Borough of Enfield v Matrix Deputies Ltd & Anor. Our advice would be to apply to the Court of Protection to have the costs clause varied to allow for the costs to be assessed in these circumstances.

The guidance also reiterated the definition of net assets as per the case of Penntrust Ltd v West Berkshire Council & Anor. This case confirms that net assets is the total assets minus total liabilities. This includes any property owned by P, regardless of if they are currently residing in the same.

Whereby P has net assets of less than £20,300, the Deputy will not be permitted to have their costs assessed. Instead, they can take an annual management fee not exceeding 4.5% of P’s assets. The guidance also confirms that if there is a pending settlement which would take P’s assets significantly above £20,300, the Deputy should apply to the Court of Protection to seek authority to delay taking costs until the settlement funds have been received. This is a move away from previous guidance which has stated that the Deputy can only have costs assessed if P has assets above the threshold on the anniversary of the Court Order.

Further guidance has now been issued in relation to tax returns. Fixed costs can be taken for the completion of a basic tax return and complex tax return. It has been difficult to determine what would account for a complex tax return and therefore this guidance is very welcomed. The guidance states that:

‘PD 19B defines a basic tax return to cover cases where P’s income is derived primarily from bank or NS&I interest and taxable benefits, discretionary trust or estate income. A complex tax return may be defined as one which also includes income form more complex investments including stocks, shares and bonds, rental property, business income and foreign property. Public authority deputies may charge up to £89 for a basic tax return as set out at paragraph 18 of Practice Direction 19B to include bank or NS&I interest and taxable benefits and may charge an amount not exceeding £89. They may charge P for the completion of more complex tax returns as a specialist service P would be expected to play for if they retained capacity.’

Guidance has also been provided in the event of P’s death. The Public Guardian recommends that the Deputy agrees any costs with the personal representative of the administrator of P’s estate. Further, the guidance states that the Deputy is not permitted to take final costs after P’s death, if the estate has not yet been settled.

If you have any questions, please get in touch with Laura Sugarman for further information – laura.sugarman@clarionsolicitors.com.

Part 36 consequences following judgment, where judgment is given in a sum other than sterling

Katie SpencerLeave a comment

The Claim

It is not unusual for claims in the Commercial Courts to be denominated in currencies other than sterling. However, that gives rise to challenges where an effective Part 36 offer has been made by a Claimant, as Part 36 of the Civil Procedure Rules assumes that judgment will be given in sterling. Recent case law has given an indication of how the Court may exercise its discretion whilst respecting the importance and intention behind Part 36 offers.

In the recent case of Sanlam General Insurance Ghana Ltd v Sustainable Growth Fund II SCSP SICAV-SIF [2025] EWHC 559 (Comm) (14 February 2025), a claim was made for $1 million said to be due under a promissory note or corporate counter guarantee governed by English law.

On behalf of the Defendant, Ms Wick acknowledged the debt through a series of letters, either explicitly or implicitly confirming the obligation to repay the claimed sums. Despite repeated promises to pay, the Defendant failed to do so, prompting the Claimant to initiate legal proceedings.

Jurisdiction and Defence

The proceedings were served in Luxembourg in accordance with local law. The Defendant filed an Acknowledgment of Service, indicating an intention to defend the claim and contest jurisdiction. However, no formal application to challenge jurisdiction was made.

Claimant’s Application for Summary Judgment

The claimant sought summary judgment on multiple grounds:

  1. Entry of default judgment against the Defendant,
  2. Striking out the Defendant’s Defence,
  3. Summary judgment on the basis that the Defendant had no real prospect of successfully defending the claim.

In response, the Defendant submitted another document incorrectly labelled a ‘Defence’ despite having already filed one.

The Defendant raised various points, including an assertion that it was not a legal “person” and therefore could not be sued, and that Ms Wick lacked authority to sign legal documents alone.

The Court considered these arguments but was ultimately satisfied that the Defendant had no real prospect of success.

 Court’s Ruling on Costs and Interest

The Claimant had made a Part 36 offer to settle the claim for $1 million, inclusive of interest, plus costs. The Defendant did not accept the offer, which was subsequently beaten.

Although the Court declined to order that all the Claimant’s costs should be assessed on the indemnity basis, it did award the usual Part 36 consequences following judgment, including costs on the indemnity basis following expiry of the offer, enhanced interest on costs and the judgment sum, and an uplift on damages capped at £75,000.

However, the claim was denominated in US dollars and Part 36 of the Civil Procedure Rules assumes that a judgment will be given in sterling. To quantify interest on the judgment sum, the Court therefore used the US dollar prime rate as the starting point, rather than the Bank of England base rate, and awarded an uplift of 7.5%. In doing so, the Court followed the guidance given in OMV Petrom SA v Glencore International AG [2017] 1WLR 3465, where it was recognised that the Court has a discretion as to interest, but it was nevertheless important to incentivise Defendants to engage in reasonable settlement negotiations.

There were fewer difficulties regarding interest on costs, which were denominated in sterling, and a 10% uplift was awarded. However, the uplift on the judgment sum presented the same difficulties as interest on the judgment amount as it was denominated in dollars. The Court rejected a submission that the uplift could not be awarded where the judgment was denominated in a currency other than sterling, as that would defeat the purpose and intention of Part 36; the approach adopted therefore was to notionally convert the judgment sum into sterling at the applicable exchange rate on the date of judgment and to calculate the uplift on those sums.

Costs Assessment for the Summary Judgment Application

Costs were assessed on the indemnity basis following expiry of the Part 36 offer and on the standard basis up to expiry of that offer . The Court therefore had to take both bases of assessment into account in the summary assessment of the Claimant’s costs:

  • Hourly rates: The Claimant claimed £700/hr for a Grade A fee earner, £528/hr for a Grade C fee earner, and £260/hr for a Grade D fee earner. The Grade A hourly rate was assessed at the London 1 rate (£566). The Defendant’s delay and the cross-border aspect involving Luxembourg law supported this rate. Other fee earners were compensated at London 2 rates (£269/hr for a Grade C and £153/hr for a Grade D).
  • Work done on documents: Document preparation costs were reduced by £3,000 to reflect that the Witness Statement and Application Notice were prepared at a time when the assessment should technically have been on the standard, not indemnity, basis. All other document-related costs were allowed as claimed. Additionally, a £7,000 brief fee was found to be reasonable as it included work on documents.
  • Attendance at the hearing: Only the Grade A fee earner’s attendance at the hearing was deemed reasonable. The Grade C fee earner’s attendance time was disallowed as it was unreasonable, even where costs were being assessed on the indemnity basis.

Katie Spencer is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors and can be contacted on 07741 988925 or at katie.spencer@clarionsolicitors.com.

Without Prejudice…..or is it?

Helen ApplebyLeave a comment

In the case of Cardiff City Football Club Limited v William Arthur McKay & Ors [2025] EWCH 1439, the significance of the “without prejudice” principle was examined. This principle protects settlement discussions from disclosure in court, encouraging parties to negotiate disputes without fear of repercussion.

The case arose when Cardiff City FC filed a Contempt Application, alleging that the Defendants had failed to comply with a disclosure order. in response, the Defendants, in their extensive Skeleton Argument, accused Cardiff City FC of abuse of process, and sought to rely upon without prejudice communications without obtaining consent or determining its admissibility.

The Court reviewed past decisions to underline the importance of protecting without prejudice communications and considered exceptions such as misrepresentation or explicit impropriety. The Defendants’ failure to formally challenge the Contempt Application and their premature disclosure of privileged communications led the Court to focus on whether these communications could be used to support their arguments.

The Defendants argued the Claimant’s use of the Contempt Application amounted to unambiguous impropriety, attempting to force disclosure they weren’t otherwise entitled to, however, the Court disagreed. The Court found no unambiguous impropriety and the without prejudice communications remained protected and inadmissible as evidence in the Defendants’ Application to strike out the Claimant’s Contempt Application as an abuse of process.

Ultimately, the Court emphasized the need for procedural correctness, requiring parties to seek a separate privilege hearing before attempting to rely on without prejudice discussions.

For further information and a detailed consideration of the case, please refer to our June 2025 newsletter

Are the costs of obtaining a Grant of Probate or Letters of Administration recoverable on an inter-partes basis?

Ellena HunterLeave a comment

This question was dealt with by Senior Costs Judge Rowley in The Personal Representatives of the Estate of Maurice Hutson (deceased) & Ors v Tata Steel UK Ltd [2025] EWHC 1594 (SCCO).

The Paying Party challenged the recoverability of the costs of obtaining a Grant of Probate (hereafter “Grant”) within the Points of Dispute as follow:

“The Paying Party refers to the case of Mosson v Spousal (London) Ltd [2016] EWHC 54 (QB) (25 January 2016) and submits that the costs of obtaining a Grant of Probate are not recoverable on an inter partes basis.”

At the Detailed Assessment hearing, the Paying Party submitted that the case of Mosson was an authority for the proposition that the costs of obtaining probate cannot be recovered as damages in claims pursued under the Law Reform (Miscellaneous Provisions) Act 1934. The Receiving Party submitted that the fact that the costs of applying for probate could not be claimed as damages was both ‘incontrovertible and irrelevant’ where these fees have been claimed as items of costs. The Receiving Party invited the Judge to dismiss the point of dispute on the basis that the only argument, the reliance on Mosson, was one of no substance. Whilst the Judge did not disallow the point of dispute, he was clearly not entertained by the argument.

The Judge stated that the nub of the Paying Party’s challenge was the one regularly made by Defendants faced with claims for the costs of probate, namely: would these fees not be required anyway as part of dealing with the administration of the Deceased’s estate? If so, they should not be claimed as a cost of the litigation.

It was agreed between the parties that a Grant was required for a Claimant to pursue a claim under the Law Reform (Miscellaneous Provisions) Act 1934. It was further agreed that if the only reason for the Claimant to obtain the Grant was for this purpose, then the reasonable costs of doing so would be recoverable. If a grant was obtained to administer the estate, then no more than the costs of obtaining a copy could be claimed as a cost of the litigation.

The Paying Party’s case was then how the Claimant was to prove that the Grant was taken out simply for the litigation, and that the need for the Grant should be exclusive to that. The Paying Party went further to say that if the Judge had any doubt as to whether the Grant was obtained exclusively for the litigation, it should resolve the doubt in the Paying Party’s favour, since it was a standard basis assessment, and disallow the Grant costs claimed. The Receiving Party did not accept that the exclusive test was appropriate.

The Judge also did not accept the Paying Party’s approach as it was his view that this was not a situation where there was likely to be any doubt. He stated that:

“The question was really how much evidence was required to establish that the Claimant would not have sought a Grant if it were not to make a claim?”

In the present assessment, the solicitors for the Claimants had provided evidence about the size of the relevant estates, and why grants were not required to deal with items such as bank accounts, which would often be released without great formality.

The Judge recognised that there was a lack of any recent or easily accessible authorities on this point, so gave the following guidance:

“In my view, the bar for establishing that the Grant was obtained for the purposes of the litigation is not a particularly high one. If the personal representative or administrator attended Court on the assessment of their costs, it would require no more than their confirmation that the grant had been obtained for the litigation for the costs of so doing to be allowed in principle. Consequently, the witness evidence of the two solicitors in these cases which is both detailed and backed by supporting documents is more than sufficient in my judgment to establish these claims.”

In light of this judgment, practitioners would be well placed if they contemporaneously documented their file to reflect why a Grant would not have been required but for the litigation. This may be helpful in resolving challenges on the recoverability of these costs at an early stage, but if not, would be a helpful document to use as evidence in support, as the solicitors did in the Hutson case, if the costs were disputed and the matter proceeded to a detailed assessment.

Ellena Hunter is an Associate in Clarion’s Costs and Litigation Funding Team and can be contacted on 07979 199145 or Ellena.hunter@clarionsolicitors.com

EG v P [2024] EWCOP 80 (T3) – Court Rules Out Drug Debt Payment in Complex Capacity Case

elliescallyLeave a comment

A recent ruling by the Family Division, delivered by Sir Andrew McFarlane, addressed a deeply complex and sensitive case involving a young man (“P”) in his 20s who suffered catastrophic brain injuries in a car accident at age two. Although he lives a largely autonomous life, the court oversees his significant financial assets through appointed deputies due to his limited capacity to manage complex financial decisions.

Background

P was awarded substantial compensation due to his childhood injuries. While he manages parts of his daily life independently including relationships, parenting, and routine financial matters, his finances are still overseen by deputies appointed under the Court of Protection.

A prior psychological assessment had confirmed P had capacity to sign a cohabitation agreement, but the matter recently escalated when P became embroiled in a serious criminal issue.

The Criminal Context

Over a year ago, police raided P’s property and discovered a significant quantity of class A and B drugs. P was arrested and is believed to be partly responsible for selling and storing the drugs. The matter took a darker turn when P informed his deputies that he was being threatened by an organised crime group to pay £17,000 as his “share” for the confiscated drugs.

Fearing for his safety, P requested that money be released to pay the debt. However, this placed the deputies in a legal and ethical dilemma.

Legal and Professional Risk

The deputies sought legal opinions which made it unequivocally clear: any payment toward the drug debt would likely constitute a criminal offence under the Proceeds of Crime Act 2002. Furthermore, they could face professional misconduct charges under the Solicitors Regulation Authority (SRA) code of conduct.

As a result, the case turned on a critical legal question: Does P have the mental capacity to decide to pay this drug debt?

Capacity Assessment

A detailed capacity evaluation by Dr. Geoff Hill, a consultant neuropsychologist, concluded that P lacked the mental capacity to make this complex decision. Although he understood the immediate relief he might gain from paying the debt, he could not sufficiently comprehend or weigh the longer-term risks — including legal consequences and future threats.

Dr. Hill found deficits in P’s executive function, reasoning ability, and memory retention, all linked to his original brain injury.

Court’s Decision

Sir Andrew McFarlane accepted Dr. Hill’s assessment and ruled that P lacked the capacity to make this decision. Accordingly, the court refused to authorise any payment towards the drug debt, noting that doing so would be tantamount to the court indirectly engaging in criminal conduct.

Although the Official Solicitor (representing P’s interests) urged the court to dismiss the application entirely, Sir Andrew declined, recognising the deputies’ difficult position and need for legal clarity and protection.

Conclusion

This case underscores the delicate balance the Court must strike when dealing with adults who retain partial autonomy yet require safeguarding in complex circumstances. It also highlights the serious implications of criminal involvement for individuals under protection, and the boundaries professionals must not cross, even with good intentions.

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

CJC Report on Litigation Funding

Bethany CollingsLeave a comment

The Civil Justice Council (CJC) has today published its much-anticipated report on litigation funding – arriving slightly ahead of the expected summer 2025 release. You can read the full report here.

Watch this space for our detailed blog outlining the key takeaways.

Bethany Collings is an Associate in Clarion’s Costs and Litigation Funding Team and can be contacted at bethany.collings@clarionsolicitors.com or on 07774 951949.

Updated practice guidance released by the OPG and SCCO – an important reference point for professional deputies!

Ella WilkinsonLeave a comment

On 28 May 2025, the good practice guidance previously issued by the Office of the Public Guardian (OPG) and the Senior Courts Costs Office (SCCO) was updated. This guidance exists to assist professional deputies in respect of their costs estimates, preparing and submitting bills for assessment and in understanding what work can be claimed and recovered. The vast majority of the contents remain similar to the original guidance released by the OPG and SCCO dating back to 2016 in respect of the expectations from professional deputies in regards to general good practice and the SCCO’s approach to assessment, however more recent developments have now been factored in such as the use of the E-bill and the CE File system, the case of ACC and Others, the latest stance regarding post death costs and the increased hardship threshold.

This blog summarises the key points raised, to ensure that professional deputies continue act in P’s best interests and comply with the requirements of the OPG, SCCO and Court of Protection. Importantly, the guidance issued is not intended to replace existing provisions such as the relevant Civil Procedure Rules, Practice Direction 19B (supplementing Part 19 of the Court of Protection Rules 2017), the Mental Capacity Act (2005) Code of Practice, and the OPG professional deputy standards.

Principles of Good Practice

Professional deputies are entitled to claim reasonable and proportionate costs. Key expectations include:

  • Aligning costs with the value of P’s estate and the work involved
  • Delegating tasks to appropriately graded staff
  • Acting transparently and always in P’s best interests
  • Evaluating whether their continued role remains necessary as P’s situation stabilizes
  • Where deemed appropriate, deputies should be open and transparent about their charges with P’s relatives

Deputies who fail to follow this guidance may need to justify their decisions, and the OPG may take action, including applications to remove a deputy where concerns arise.

Costs Estimates

  • The OPG105 must be submitted with the annual deputyship report, and in most cases it should take no more than 30 minutes to complete
  • If billed costs exceed the original costs estimate by 20% or more, deputies must explain the discrepancy
  • Significant changes in P’s circumstances should be reported to the OPG if they will impact costs

Assessment of General Management Costs

The SCCO’s role is to assess whether claimed costs are reasonable and proportionate. Their key considerations include:

  • Hourly Rates: these must generally align with the relevant SCCO Guideline Hourly Rates (except in the most exceptional circumstances)
  • Delegation: routine tasks, such as arranging payments or bank reconciliations, should be completed by administrative staff or Grade D fee earners at best. In addition, when reviewing time claimed for delegation, the SCCO will consider if the time clamed was reasonable, proportionate, progressive and that it serves to reduce costs
  • Home Visits & Contact: usually, only one home visit per year is allowed unless justified
  • Welfare Work: these cannot be claimed under property and affairs general management costs unless the Court of Protection gives permission
  • Overheads: routine supervision, internal communication, and basic administrative tasks are considered overheads and are not generally not recoverable
  • Payment of Bills: three minutes will be allowed for payments per instance, and no further time is usually allowed for amending records to reflect payments made or advising a party of a payment processed to them
  • Financial Beauty Parades: generally, only one senior fee earner will be allowed on assessment for attending these meetings
  • File Notes: if no or little documentary evidence is supplied in support of the bill and/or particular items of work claimed, it is likely that the SCCO will disallow the costs claimed
  • Litigation Costs: the SCCO will disallow costs which could be claimed within the context of ongoing litigation
  • Draftsman’s Fees: a Grade D rate will be allowed for the preparation of bills of costs, unless in exceptional circumstances

ACC & Others Judgment

Where work falls outside of the scope of general authority for the management of P’s property and financial affairs, a professional deputy may need to apply for further authority in respect of this work and the associated costs as per ACC & Others. The full judgment can be seen here: ACC & Ors ( property and affairs deputy ; recovering assets costs for legal proceedings) – Find Case Law – The National Archives, and we have also previously prepared a blog summarising this and the practical implications for deputies which can be found here: ACC & Others – A Useful Recap – Clarion Legal Costs

Submissions of Bills of Costs & Supporting Documentation

  • Bills of costs should ideally be submitted annually for assessment, as close to the end of the management year as possible
  • Bills covering less than a year can be submitted where there has been a transfer of deputyship and the deputy intends to realign the management period dates with the new order. If this transfer is internal within the same firm, such bills must span at least six months of work unless in exceptional circumstances
  • Bills must be submitted via CE file, and can either be the traditional bills of costs set out under Practice Direction 47 CPR Part 47, or in the newer E-Bill format
  • The short form bill format is required where costs claimed are under £3,000.00 (excluding VAT and any disbursements claimed)
  • Supporting documents submitted alongside the bill should include the OPG105, deputyship report (OPG102/103), any relevant Orders made by the Court of Protection providing authority for work falling outside of the general authority, as well as evidence in support of the hourly rates claimed (client care paperwork)

Post-Death Costs and Hardship

On P’s death, the deputyship will come to an end and the jurisdiction of the Court of Protection will cease. Costs incurred post-death are not assessable by the SCCO. The deputyship order however will continue to authorise detailed assessment of costs incurred during P’s lifetime, if these cannot be agreed with the executor of the estate. If the professional deputy is also appointed as executor, a potential conflict of interest arises and a bill of costs should be submitted to the SCCO for assessment.

Where P’s estate has a value of less than £20,300.00, deputies must follow specific directions set out under Practice Direction 19B with regards to hardship. This states that in such circumstances, ‘the professional deputy for property and affairs is not permitted to apply for assessed costs; instead they may take an annual management fee not exceeding 4.5% of P’s net assets on the anniversary of the court order appointing the professional as deputy’.

Summary

The guidance aims to encourage fairness, consistency, and clarity in the way the costs of professional deputies are managed and assessed. For deputies, it reinforces the importance of transparency, efficiency, and the diligent management of P’s affairs.

Professional deputies are urged to familiarise and refresh themselves with the full guidance and relevant existing provisions to ensure that they continue to act in line with best practice expectations and requirements.

If you would like to review the guidance in full, this can be found at: Professional Deputy Costs – GOV.UK

Defendant Barred from Arguing Costs – Except Wasted Costs

Katie SpencerLeave a comment

In the recent judicial review case of Ayinde, R (On the Application of) v The London Borough of Haringey, the Defendant was barred from making submissions on general costs after failing to comply with key procedural requirements.

Background

Following the Claimant’s issuance of judicial review proceedings, the Defendant failed to acknowledge service and did not file a statement of facts and grounds of defence. As a result, the Defendant applied for relief from sanctions in an attempt to participate in arguments on costs.

Costs consequences for the Defendant

The Court refused the application, underlining the importance of strict compliance with procedural rules. Consequently, the Defendant was barred from making submissions on general costs.

Wasted Costs

However, the Court did allow the Defendant to make submissions on wasted costs. This exception arose due to the Claimant’s legal representatives citing five fictional legal authorities in their application. In response, the Court issued a wasted costs order, describing the actions as professional misconduct.

Despite being restricted from general cost arguments, the Defendant was still permitted to address the issue of wasted costs—a distinct category aimed at compensating parties for costs incurred due to improper or negligent conduct by legal professionals.

Summary

This ruling serves as a strong reminder that non-compliance with court orders or procedures can lead to severe consequences, including the loss of the right to contest key aspects of a case, particularly on costs.

Practitioners must act promptly and diligently in complying with court directions. Failure to do so risks being excluded from critical elements of litigation, especially those with significant financial impact.

Katie Spencer is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors and can be contacted on 07741 988925 or at katie.spencer@clarionsolicitors.com.

W v P [2025] EWCOP 11 (T3): A Recent Decision in the Court of Protection

Lydia MarshallLeave a comment

The case of W v P [2025] EWCOP 11 (T3) is a significant decision from the Court of Protection that sheds light on key aspects of mental capacity law and decision-making in vulnerable individuals. The case touches upon the legal principles underpinning the Mental Capacity Act 2005, particularly regarding the balancing of an individual’s rights and the need for protective intervention.

Background

W v P involved a complex dispute over whether P should be subjected to certain types of care and treatment under the Mental Capacity Act 2005. The issue at hand was whether the Court should authorize certain actions that would otherwise infringe upon P’s rights.

P had been diagnosed with a condition that severely impaired their mental capacity, affecting their ability to make decisions regarding their care and welfare. A key aspect of the case was whether P could make decisions about their daily living arrangements and, if not, who should have the authority to make these decisions on their behalf.

The applicant in this case, W, was seeking to secure specific decisions about P’s welfare and medical care. The court had to examine whether those decisions were in P’s best interests and whether they adhered to the legal requirements under the Mental Capacity Act.

Key Legal Issues

  1. Best Interests Test: Central to the case was the application of the best interests Under the Mental Capacity Act 2005, any decision made on behalf of someone who lacks capacity must be based on what is in their best interests. This means the court must consider the person’s wishes, feelings, beliefs, and values where possible, and take into account their prior wishes and any relevant evidence.
  2. Autonomy vs Protection: The court considered the balance between respecting an individual’s autonomy and ensuring protection for those who are vulnerable. The court was tasked with determining the extent to which P’s rights to autonomy could be limited in favour of ensuring their safety and well-being.
  3. Lack of Capacity: P’s lack of capacity to make decisions was central to the case. The court had to assess the degree to which P was unable to understand or make decisions about their care and treatment.
  4. Role of Family Members: The role of family members was also critical in this case. W, as the applicant, sought to ensure that the decisions made on P’s behalf were in line with what P would have wanted. However, the court also had to weigh in on whether these decisions were truly in P’s best interests, even if they conflicted with the views of family members.

Court’s Decision

The Court of Protection ultimately decided that the care and treatment decisions proposed by W were appropriate, taking into account expert evidence, the views of healthcare professionals, and what could be determined about P’s past wishes. The judgment emphasized the importance of involving those close to P, such as family members, but also that the court must ultimately make decisions based on the best interests of the individual to ensure personal freedom is not infringed upon unless absolutely necessary.

Implications for the Future

The case of W v P reinforces that while autonomy is a key principle, there are circumstances where individuals may need protective measures to safeguard their well-being. It is important to consider the balance between protecting vulnerable individuals and respecting their autonomy when making such decisions. This case also serves as a vital example for legal professionals, carers, and healthcare providers, highlighting the complexities involved in making decisions for those who lack mental capacity.

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

 

An Insight into the General Principles and Rationale of the Costs Budgeting Process

angelanakoLeave a comment

Introduction

The judgement of Master Brightwell in Atlantic Ways Holding SA v Freetown Terminal Holding Ltd [2025] EWHC 674 (Ch), provides an insight into the costs budgeting process and emphasises the importance of proportionality in the costs management process, regardless of whether costs in the first instance were reasonable in nature.

Background of the case

A cost management hearing took place on 25 February 2025, where there was a disparity between the budgets of the Claimant and the Defendant. The Claimant’s budget had been agreed at £449,000 and the Defendant’s budget was drawn at £808,000 and was disputed. Due to this disparity, Master Brightwell set out the general principles of each parties’ proposals, in comparison to the principles of costs management.

The Judgement

Master Brightwell made clear that a budget is set by the Court without undertaking a detailed assessment in advance. However once set, the Court would not depart from this without adequate reason, and it is the role of the Court to set the budget “with an eye to what would be permitted on a detailed assessment on the standard basis” meaning any doubt will be resolved in favour of the paying party. It was also highlighted that the Court is to avoid comparing parties’ budgets, whilst acknowledging that it remains impossible to fix one budget and ignore the other. The Master went on to confirm that the budgeted costs are still considered reasonable and proportionate if they fall at the outer end of the range.

In respect of hourly rates, Master Brightwell emphasised that it is not for the Court to set or approve the charging rates or the time spent by each level of fee-earner and Counsel. However, if the charging rates are not within a reasonable range, then this would affect the reasonableness and proportionality of the budget. The rates used in the Defendant’s costs budget significantly exceeded even the London 1 rates which are for “the heaviest corporate and commercial work,” and whilst the claim was not insignificant, it still was not the most substantial case type dealt with by the Court. Therefore, the London 1 guideline rates would be the maximum permitted.

Master Brightwell then explained his rationale for the budget set for the Defendant by applying the principles of reasonableness and proportionality to each phase.

Each phase of the budget was reduced. However, whilst the amount sought by the Defendant for the expert reports is unclear, the Master granted the Defendant’s budget for this phase at £55,000 in comparison to the Claimant’s budget at £40,000 to allow margin for error. This itself is another useful insight into the budgeting process and acknowledges that the Courts are willing on occasion, to allow variations during a hearing where developments justify it.

Duplication and involvement of multiple fee-earners was addressed by the Court, with reductions made due to fears regarding duplication. The Master noted Practice Direction 57AC, highlighting that witness detailed investigations of documents were not to be conducted and what was said in documents was not to be recited, rather the idea of the witness statement phase is to take the witness’ own evidence. Attendance at trial by multiple fee earners was also reduced by the Court, with attendance by two fee-earners and another present for assistance being provisioned, as opposed to four fee earners that were sought.

Despite DKH Retail Ltd and others v City Football Group Ltd [2024] EWHC 3231 (Ch) where the court ordered for mediation to occur before trial, Master Brightwell in this case reduced the budget for ADR to exclude the assumption of mediation. Master Brightwell explained that if mediation was to occur, then the budget could be revised on the basis of a substantial development.

Conclusion

Overall, the case provides a useful step by step approach to each phase of a costs budget during the cost management process and emphasises the application of the principle that proportionality trumps reasonableness, even at the cost budgeting stage.

 

Angela Nako is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors.  You can contact the team at civilandcommercialcosts@clarionsolicitors.com