Please see below my recent blog on the anticipated Court fee changes that are likely to be implemented from 1 April 2025 subject to Parliamentary approval.
Section 70 of the Solicitors Act 1974 – the importance of clear billing agreements and accurate cost estimates
In the recent judgment of Toplasson GmbH v CMS Cameron McKenna Nabarro Olswang LLP [2025] EWHC 118 (SCCO), the Claimant sought an order under section 70 of the Solicitors Act 1974 (“the Solicitors Act”) for the Detailed Assessment of 27 invoices raised by the Defendant. All but the last bill was delivered more than 12 months before the issue of proceedings and all but the last 8 bills were paid more than 12 months before the issue of proceedings.
The Claimant, a software supplying company, instructed the Defendant, in August 2019 to prepare a contract with a customer on their behalf. The contract was subsequently terminated by the customer, which resulted in litigation and a judgment against the Claimant in the sum of €5 million, which at the time of the hearing, was being appealed by the Claimant. There were therefore two retainers between the parties, one in respect of non-contentious work for preparing the contract and the second for contentious work in respect of the litigation. Work commenced in respect of the litigation in April 2020.
There were three costs estimates given to the Claimant. The first was provided in July 2020, which was the day before the mediation was to commence, in the sum of £1,920,664. This included incurred costs of £240,000. The Defendant then filed a case management sheet in July 2021 which stated that the incurred costs were at that point £565,000, and the estimated costs to trial were £2.05 million. The final costs estimate was provided in March 2022 where future costs were stated as £1,717,500.
The invoices largely followed the same format and included a description of the work done in a similar level of detail to that which would be set out in a bill of costs, or breakdown, for Detailed Assessment. The first invoice in respect of the non-contentious work was delivered in July 2019. The Defendant issued monthly invoices for their work thereafter, with the final one delivered in May 2022.
As the litigation progressed, the balance of fees outstanding grew, with a partial payment of £500,000 fees made in January 2022. By May 2022, unpaid legal costs reached £1.3 million, prompting the Defendant to terminate their retainer.
Key issues considered
The case proceeded, based on the determination of the following key issues:
- The status of the bills and whether they were interim statute bills or a series of on account bills which taken together formed a Chamberlain bill?
- Under which subsection of section 70 of the Solicitors Act did the bills fall under?
- Insofar as the bills (or any of them) were found to come within the subsections of section 70 of the Solicitors Act, on what basis could an assessment be ordered?
- Did the Court have power to make an order for Detailed Assessment restricted to the profit costs and all other disbursements (excluding counsel’s fees and Court fees) under section 70(6) of the Solicitors Act?
- Should the Court make any order for payments on account and if so, for how much?
Judgment
In respect of the first issue, the Defendant’s position was that the bills were interim statute bills, and final bills for the periods they covered. Meaning only the final 8 could be subject to assessment, unless ‘special circumstances’ were proven. The Claimant’s position was that all 27 bills were on account bills that together formed a single final statute bill on 7 June 2022.
Senior Costs Judge Gordon-Saker ruled that the Defendant did not have the right to render interim statute bills because:
- The retainer agreements did not explicitly state that each bill was “final” for the period it covered.
- The wording in the agreements (“keep you informed of the level of costs incurred”) was more consistent with monthly billing.
- Previous case law showed that without a clear statement that bills are final, they do not qualify as interim statute bills.
The bills collectively formed a single final statute bill on 7 June 2022 and the Claimant was therefore entitled to request a Detailed Assessment of all 27 bills, totalling £2.15 million.
For the purposes of the second issue, the judgment analysed which subsection of section 70 applied:
- Section 70(2) applies when the client seeks an assessment within 12 months of receiving the bill and provides that the Court may order such assessment on such terms as it sees fit.
- Section 70(3) applies if more than 12 months have passed and requires the client to prove ‘special circumstances’.
The Judge found that because the final bill was issued on 7 June 2022 and the claim was brought within 12 months, section 70(2) of the Solicitors Act applied, and the Claimant did not need to prove ‘special circumstances’.
Although the Claimant did not need to prove ‘special circumstances’, the Judge still examined key factors which were raised by the Claimant. In particular, the Claimant argued that the Defendant unlawfully ended its services. However, the Judge rejected this, finding that the Defendant was entitled to stop work due to non-payment.
Furthermore, the Defendant’s initial estimate was £1.95 million, but later invoices suggested costs could reach £3.7 million. The Judge therefore found, that even if section 70(3) of the Solicitors Act applied, the large discrepancy in cost estimates alone would justify a Detailed Assessment.
With regards to the question as to whether the Court could order a partial assessment, which excluded counsel and Court fees, as per the Claimant’s request, the Judge decided that section 70(6) of the Solicitors Act, did allow the Court to exclude certain categories of costs at assessment, and limit the assessment to profit costs and selected disbursements only. It was concluded that the Claimant can challenge only the parts of the bill they have disputed, rather than being forced into a full assessment. It was the Defendant’s position that this was not possible, and all costs should be assessed together.
The Court confirmed:
“… it seems to me that it is not necessary to shoehorn what was charged as a disbursement into the profit costs. The Claimant is not unhappy with counsel’s fees (and I understand that the same counsel are continuing to act for it) and nor is it unhappy with the court fees. It would be absurd to force the Claimant into an assessment of either. They would be included in the breakdown and then not challenged in the points of dispute. Their only effect would be in increasing the size of the bill when calculating whether one-fifth had been disallowed for the purposes of considering the incidence of costs under s.70(9).”
This was important for the purposes of the 1/5 rule in section 70(9) of the Solicitors Act, which will largely determine who is responsible for the costs of the assessment process. Had the Court ordered assessment of all fees, then the threshold for reducing the bill by 1/5 would have increased significantly for the Claimant, meaning they were more unlikely to recover their costs of assessment from the Defendant, even if significant reductions were made to the issues they were disputing.
The ruling reinforces the need for good housekeeping in respect of accurate fee estimates, and for solicitors to ensure they have a right to raise final ‘statute bills’ during the course of the retainer, if they wish to do so.
Bethany Collings is an Associate in Clarion’s Costs and Litigation Funding Team. You can contact the team at civilandcommercialcosts@clarionsolicitors.com.
Understanding the Role of Court of Protection Visitors and the Release of Reports
The Court of Protection plays a critical role in decisions related to individuals who may lack the mental capacity to make important decisions for themselves. Central to this process are Court of Protection visitors, whose work is integral to the assessment, supervision, and investigation of such individuals, including those with deputies or attorneys appointed to act on their behalf.
In this blog, we’ll delve into the responsibilities of these visitors and the complex guidelines surrounding the release of the reports they generate.
Who are Court of Protection visitors
Court of Protection visitors are appointed to assess the circumstances of individuals involved in legal matters under the Mental Capacity Act 2005. The role of these visitors is statutory.
There are two main types of Court of Protection visitors:
• Special Visitors – These are typically medical professionals with specific knowledge of mental capacity, which refers to a person’s ability to make decisions at a particular time.
• General Visitors – These individuals may not hold medical qualifications but must have experience in mental capacity assessments.
The Office of the Public Guardian administers a panel of these visitors, who are mainly contracted to carry out these duties across England and Wales, although a small number are employed directly by the Office of the Public Guardian.
What do Court of Protection visitors do?
Court of Protection visitors carry out visits to individuals as directed by the court or the Office of the Public Guardian. These visits may involve people who have a Deputy, a registered Enduring or Lasting Power of Attorney, or even individuals who are under investigation prior to Lasting Power of Attorney registration. Their visits aim to gather essential information to ensure that the decisions made on behalf of someone lacking capacity are in their best interests.
Visitors are authorized to:
• Interview the individual in private.
• Review and copy relevant records, such as medical, social services, and care records.
• Independently report back to the Office of the Public Guardian on matters related to the person’s welfare, and Deputy or attorney activities.
In some cases, the court may request a report from a visitor to aid in making a decision.
When can a report be released?
The release of visit reports is subject to strict rules, ensuring that only relevant individuals or parties have access to the information, and only when the law allows.
Under the Court of Protection Rules 2017, reports prepared by visitors for the court are generally made available to those directly involved in the case. This includes:
• The person making the application (the applicant).
• The person the application is against or who needs to respond (the respondent).
• Other parties involved in the case, as determined by the court.
Individuals who are not involved in the case can apply for a report, but the court may only provide an edited version. Requests can be made using form COP9, and the court may release reports without charge.
In certain circumstances, the Office of the Public Guardian can release a report to those involved in the case, including:
• Individuals interviewed during the report preparation, such as relatives, carers, or legal representatives.
• Entities included in an Office of the Public Guardian court application or during investigations, like police or local authorities.
Additionally, assurance visits may result in reports that can be accessed for transparency and oversight.
The Office of the Public Guardian has the authority to share visit reports with local authority social services, health bodies, or care providers if it is necessary for the person’s welfare, or to assist in supervising a Deputy or attorney’s actions.
If there is an ongoing investigation into potential criminal activity, reports may be shared with the police to aid their inquiry.
Individuals have the right to access personal information about themselves under the Data Protection Act 2018. This includes records held by the Public Guardian, such as visit reports. However, sensitive information not related to the subject of the request or information that could harm a third party may be redacted.
When might a report not be released?
There are specific circumstances where the Office of the Public Guardian can withhold or restrict the release of a report:
-Third-Party Data Protection: If releasing the report would infringe on another person’s privacy rights.
-Confidentiality: If a third party shared sensitive information with the visitor in confidence. •
Reports may also be redacted to protect the identities of certain individuals or to remove sensitive content that could pose a risk.
Publication of visit reports
The publication of Court of Protection visit reports is generally prohibited by the Office of the Public Guardian. This includes the sharing of reports or extracts in any public forum or publication. If you are considering publishing a visit report, approval from the Office of the Public Guardian is required to ensure compliance with legal standards and privacy concerns.
Conclusion
Court of Protection visitors play a vital role in protecting the interests of vulnerable individuals by providing independent assessments and reporting to the Office of the Public Guardian and the courts. The release of these reports is tightly regulated to ensure privacy, protect individuals’ rights, and safeguard sensitive information.
If you are involved in a Court of Protection matter or are considering seeking access to such a report, it is important to understand the rules governing the release of this information, and how the Office of the Public Guardian oversees these matters.
For any further information, please contact Ellie Scally at Ellie.scally@clarionsolicitors.com
Costs Budgeting Light Pilot Schemes: 179th Practice Direction Update
New Practice Directions – PD51ZG1 and PD51ZG2 – detailing the long-awaited Costs Budget “light” Pilot Schemes will take effect from the 6 April 2025. There will be simplified costs budget (Precedent Z), budget discussion report (Precedent ZR) and Precedent T (Precedent ZT) forms, but these are yet to be published. The Pilot Schemes will be […]
Lack of care with cost estimates, retainers and time recording leads to reductions on a solicitor/own client assessment
Although the sums in issue in this detailed assessment under the Solicitors Act 1974 were not significant (the bill totalled £3,841 plus VAT), Costs Judge Nagalingham’s judgment in Jennifer Underhill v Thackray Williams Solicitors [2024] EWHC 3206, gives a useful insight into the consequences of some common failings by solicitors with regard to cost estimates, hourly rates and time recording.
The Facts
The Claimant instructed the Defendant to advise in relation to an employment matter. The Defendant received three instructions from the Claimant. The first was on a fixed fee basis of £250 plus VAT for a meeting and a written advice. The second instruction related to the preparation of a letter before action and conduct of an employment tribunal matter. The third instruction concerned the negotiation of a settlement agreement following a settlement with the Claimant’s employer. The costs associated with the first and third instruction formed no part of the detailed assessment, which focussed solely on the bill delivered by the Defendant in connection with the second instruction, in the sum of £3,841 plus VAT.
The Issues
Due to the modest size of the bill, a formal breakdown was not ordered. Instead, the parties had agreed that the Defendant’s time ledger provided sufficient detail for the costs claimed to be assessed. However, the time ledger was not accurate. It totalled £5,863 plus VAT, but there was no explanation that could be reconciled with a bill figure of £3,841 plus VAT. In addition, the front of the ledger reported time of 26 hours 11 minutes, but the final page totalled the time 27 hours 24 minutes; neither were correct because the individual items amounted to 23 hours 36 minutes.
All work done on that instruction was subject to a conventional private fee-paying agreement. In their engagement letters, the Defendant provided a cost estimate which indicated that their fees should not exceed £1,470 plus VAT for pre-action and without prejudice letters but that if the matter proceeded to a final hearing, costs were estimated at £15,000 to £20,000 plus VAT. The Claimant believed that the cost estimate meant that her total bill would not exceed £1,470 plus VAT as a settlement was agreed before proceedings were issued.
The hourly rates claimed by the Defendant were also in dispute. The claim was conducted by a Grade C solicitor and the Claimant had agreed rates of £195 per hour and £210 per hour for him. However, although the engagement letters indicated that the Grade C would be supervised by a Partner, there was a dispute as to whether the Claimant had been advised of her hourly rate.
The Decision
As with all detailed assessments under the Solicitors Act 1974, the costs were assessed pursuant to CPR Rule 46.9(3), which provides that:
“…costs are to be assessed on the indemnity basis but are to be presumed –
(a) to have been reasonably incurred if they were incurred with the express or implied approval of the client;
(b) to be reasonable in amount if their amount was expressly or impliedly approved by the client;”
In respect of the cost estimate, the Costs Judge found in the Defendant’s favour. He found that, correctly interpreted, the cost estimate related only to the preparation of the letter before action and that the wording of the engagement letters was sufficient to conclude that the Claimant had either expressly or impliedly approved costs to be incurred beyond the initial estimate. However, the Costs Judge could not conclude that the costs beyond the estimate were reasonable in amount, because the Defendant failed provide an updated cost estimate until the conclusion of the matter.
As regards hourly rates, the engagement letters all indicated that the Grade C would be supervised by a Partner. However, none of the engagement letters mentioned the Partner’s hourly rate or that the Claimant would be charged £350 per hour. In the circumstances, all Partner time was removed from the bill.
The inaccuracies in the time ledger did not result in any significant reductions, as there had been a significant write off in the sum of £1,772 plus VAT. However, it was beyond doubt that there had been errors and that was taken into account in respect of costs of the assessment.
The bill was assessed in the sum of £3,150 plus VAT, a reduction of circa 15%. Pursuant to section 70(9) of the Solicitors Act 1974, a reduction to the bill of less than 20% would normally have resulted in the Claimant paying the costs of the assessment. However, the Costs Judge held that the errors in the time recording and the fact that an updated cost estimate was not provided until all the costs had been incurred (thus depriving the Claimant of an opportunity to approve the costs) were special circumstances which justified a different order. Consequently, the Costs Judge made no order as the costs of the assessment.
Robert Patterson is a Senior Associate in the Civil and Commercial Costs Team at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com
Breakdown of agency uplift on expert fees … a step closer to clarity?
In the recent case of JXX v Archibald [2025] EWHC 69 (SCCO) Costs Judge Rowley considered whether a breakdown of an expert’s fee is required when the expert is instructed by an agency.
The Defendant applied for a declaration that the Claimant’s bill of costs was non-compliant with the CPR and requested that the detailed assessment proceedings were stayed until the Claimant filed and served copies of the experts’ fee notes and separate breakdowns of the costs of the medical agency and experts. The application also sought that the bill of costs was to be struck out in its entirety or the claims that relate to medical evidence were to be assessed at zero.
This led to the question – is the Claimant obligated to provide a breakdown of the expert fee note to show the percentage of the fee being taken by the medical expert agency?
Background information
A Consultant Ophthalmologist was instructed by the Claimant, directly in the first instance and then through the medical agency for further evidence; with fees amounting to around £120,000. Medical and Professional Services Limited (‘MAPS’) was the agency used in this case and the Defendant’s noticed a ‘stark and shocking’ difference in the fees of the expert from when they were directly instructed, compared to when they were instructed via MAPS. The invoices provided by the expert to MAPS had been increased by approximately 60%
In the Defendant’s Points of Dispute, they stated that the “Claimant was accordingly required to file and serve a breakdown in respect of each, and every fee rendered by MAPS… and the Court can arrive at a reasonable and proportionate allowance. […] Pending this further information the Defendant puts in dispute each and every fee charged by MAPS and declines to make any offer for any such fees at this time.”
The Claimant responded to this point, in an attempt to justify their use of MAPS and submitted that all expert fees were “reasonable and proportionate on a global basis, particularly taking into account the specialist skill, knowledge and expertise of the experts involved.” The Claimant also requested a breakdown from MAPS.
The Claimant’s argument against MAPS’ approach
The Claimant argued that MAPS was instructed to prepare a medical report and to provide all relevant services, and the fee claimed was one which the Claimant was liable to pay and was appropriately invoiced and vouched for on the assessment.
Unhelpfully, MAPS declined to provide a breakdown of the expert’s fees, and the managing director claimed it was not part of MAPS’ standard policy to supply such information as it was regarded as being “unimportant and misleading when considering the overall reasonable cost of obtaining the medical expert evidence … as well as being confidential”.
Cost Judge Rowley stated that “the approach of MAPS has left the Claimant in something of a bind” on the basis that MAPS’ involvement required a ‘slight’ increase in the fee but would result in a ‘significant’ drop in the Solicitor’s own charges. The extent of MAPS’ charges was to be justified by showing the work it has done, but as there was no evidence provided, the position was not expected to change.
He also goes onto say that “if the MRO decides not to justify its charged by way of evidence, it seems to me to be likely that the composite fee would be reduced on assessment.” A justification of the charges is based on a comparison of the work done by the third party and if it would be cheaper if it was carried out by the Claimant’s solicitor.
This comparison means looking at whether it was reasonable for the report (or similar work product) to be produced by the expert without any additional quasi-legal work being carried out.
Conclusion
There are two options a Claimant could take when faced with a composite invoice; they could pursue assessment:
- on the basis of the expert’s evidence and the agency work in obtaining that evidence if the information sought by the Defendant is provided; or
- on the hypothetical basis that there has been no MAPS involvement, and the fees claimed are solely for the expert’s evidence, if no such information is provided.
The Defendant would then be entitled to produce and rely on comparative evidence, dependant on the approach taken.
On a practical level, when contemplating instructing a medical agency, calculating and comparing the additional time of the lawyer in the event of a direct instruction versus the costs of the agency, may be useful when determining the overall costs benefit.
Practitioners may opt to instruct experts directly and avoid using medical agencies altogether.
This is an example of yet another case in favour of evidencing the breakdown.
Ujjaini Mistry is a Paralegal in the Civil and Commercial Costs Team at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com
Leicestershire County Council v P & Anor [2024]
This recent case relates to a decision made regarding whether P held capacity to make decisions regarding her care and liaison with other individuals.
History
By way of background, P has a dissociative disorder which refers to mental health conditions that involve experiencing a loss of connection between thoughts, memories, feelings, surroundings, behaviour and identity. P has experienced complex psychological trauma and experts have previously testified that P’s ability to make decisions often fluctuates, especially during dissociative episodes.
Therefore, the circumstances whereby P experiences a dissociative episode needed to be addressed and considered. The Court was required to consider P’s loss of capacity during her episodes and whether it was in P’s best interests to allow the carers to intervene and assist with the decision making process during these periods.
Legal Framework
With regards to the legal framework of this case, the Vice President made the decision that P did have capacity when she was not experiencing a dissociative episode however, it was further suggested that the legal framework in the Mental Capacity Act 2005 needed to be relied upon to determine whether assistance and intervention was required to make decisions during P’s episodes.
Section 5 and 6 of the Mental Capacity Act 2005 framework provides: “General authority to those caring for P who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done. Using this framework will have the advantage that decisions are taken contemporaneously both as to capacity and best interests, having up to date information on matters such as P’s wishes and are more appropriate to guard against such infrequent occasions as in this case”
Conclusion
In conclusion, the Court was unable to make an anticipatory declaration following a detailed review of all evidence, as it was difficult to conclude when P had dissociated to the extent that she no longer held the ability to make decisions regarding her care and contact with other individuals.
You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com
Uplifted Guideline Hourly Rates from 1 January 2025
The Guideline Hourly Rates have increased with effect from 1 January 2025.
In December 2023, the Master of the Rolls accepted the recommendations of the Civil Justice Council Costs Review, which was published in May 2023. One of the recommendations was to annually review and increase the Guideline Hourly Rates in accordance with the Services Producer Price Index (SPPI).
The Guideline Hourly Rates are now as follows (the brackets reflecting the rates effective from 1 January 2024 to 31 December 2024):
| Grade | Fee Earner | London 1 | London 2 | London 3 | National 1 | National 2 |
| A | Solicitors and legal executives with over 8 years’ experience | £566
(£546) |
£413
(£398) |
£312
(£301) |
£288
(£278) |
£282
(£255) |
| B | Solicitors and legal executives with over 4 years’ experience | £385
(£371) |
£319
(£308) |
£256
(£247) |
£242
(£233) |
£242
(£233) |
| C | Other solicitors or legal executives and fee earners of equivalent experience | £299
(£288) |
£269
(£260) |
£204
(£197) |
£197
(£190) |
£196
(£189) |
| D | Trainee solicitors, paralegals and other fee earners | £205
(£198) |
£153
(£148) |
£143
(£138) |
£139
(£134) |
£139
(£134)
|
There has been an average of a 5% increase to Grade A rates and 4% increase to Grade B, Grade C and Grade D rates.
Ujjaini Mistry is a Paralegal in the Civil and Commercial Costs Team at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com
New rules for property and affairs Deputyship applications: online submission becomes mandatory from 2 December 2024
Starting from 2 December 2024, legal professionals will be required to submit all property and affairs deputyship applications to the Court of Protection exclusively through the online submission portal. This change was announced by HMCTS (Her Majesty’s Courts and Tribunals Service) in an update sent out on 18 November 2024, with a clarification on 22 November confirming the correct date for the new rules.
What’s changing?
- Previously, legal professionals had the option of submitting property and affairs deputyship applications on paper. From 2 December 2024, all property and affairs deputyship applications must be made digitally via the HMCTS online submission portal. This is part of an ongoing effort to modernise and streamline court processes. The online portal was initially launched in January 2023, following a successful pilot that began in 2021.
- Property and affairs deputyship applications are typically filed when someone is unable to manage their own financial affairs due to incapacity, and a deputy needs to be appointed to act on their behalf. The Court of Protection oversees these applications, and from now on, the online portal will be the sole method for professionals to submit such applications.
Why the change?
- The shift to a fully online process aims to make the deputyship application system more efficient, transparent, and accessible. Digital submissions reduce administrative burdens, speed up the process, and allow for better tracking of cases.
- The updated Practice Direction 9H, which governs the process for property and affairs deputyships, will officially mandate online submissions for all legal professionals from 2 December 2024. Litigants in person will not be required to use the digital portal, although they are encouraged to do so if possible.
What happens if you don’t submit digitally?
- For legal professionals, failure to use the digital submission portal after 2 December 2024 could have consequences. If an application is submitted on paper rather than digitally, the Court of Protection is unlikely to grant authorisation for recovery of the application costs from the Protected Party’s estate. This means that firms could face the financial burden of covering court fees, which would normally be reimbursed from the Protected Party’s estate.
Steps Legal Professionals should take going forward:
- To use the online submission portal, legal professionals must have an active Payment by Account (PBA) number. This free service allows firms to pay HMCTS-related court fees via direct debit. If your firm hasn’t already registered for PBA, it’s important to do so before the deadline to avoid any delays in submitting applications. Registration is available through the HMCTS online services portal.
- Legal professionals should make sure they are fully familiar with the new submission process, including how to upload documents, and complete the forms. HMCTS provides detailed guidance on how to use the online portal effectively.
You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.
What scope is there for the recovery of litigation related costs as financial Deputy?
There is an unavoidable overlap between deputyship costs and litigation costs where a Deputy is appointed to manage P’s property and financial affairs whilst a claim remains ongoing concerning P. This has historically been and will continue to be somewhat of a grey area. The main distinction is working out whether the time spent is to be recovered under the Deputy’s bill of costs for general management or under the litigation claim.
Costs Judge James recently offered some valuable insight on this issue, and confirmed that the SCCO take the approach that “where the Deputy is being asked to provide information and/or schedules and/or documentation to support an interim payment application in ongoing litigation, these are not general management charges. They have been brought about by the actions of the defendant to the claim and the costs should rightfully be laid at the defendant’s door and not billed to P’s estate”. The same goes for where the Deputy is asked to prepare a witness statement for use in the litigation claim, with the key takeaway being that this time (with the work ultimately being generated by the defendant) should be claimed and recovered under the litigation rather than coming at a cost to P’s estate. It is not a black and white answer as to whether you can or cannot recover this time, but a question of where the work is best placed for recovery and payment.
It is inevitable in a Court of Protection deputyship matter where there is an ongoing claim that there will be some level of maintained contact throughout the management year regarding the general progression of the claim given the financial Deputy’s obligations and responsibilities. We continue to recommend that this periodical contact be included in general management bills for assessment. However, please note that where there is a significant level of contact between the fee earners and the litigator, the SCCO may take the stance that it would be more appropriate for the time incurred to be pursued in the litigation bill of costs and recovered from the defendant.
It is recommended that Deputies also consider the cases of In re Gibsons Settlement Trusts [1981] and Hadley v Pryzbylo [2024] in considering where work is best placed to be claimed and recovered. In re Gibsons Settlement Trusts [1981] applied a three strands of reasoning test, which was affirmed in the later case of Hadley v Pryzbylo [2024]. Another interesting observation made in Hadley v Pryzbylo which highlights further the lack of certainty in approach in this regard was that “as a matter of common sense, it would be unusual to rule that any generic category of cost was irrecoverable in principle; by the same token, it would be wrong to assume that, even if the generic category is recoverable, every item that made up that category was automatically recoverable”. This further demonstrates that costs in this area do not follow a one size fits all or black and white approach.
The case of ACC and Others [2020] also touches on litigation costs incurred by Deputies and what work can be done under the general management authority for steps taken in contemplation of litigation. My colleague Leah has recently prepared a helpful summary of the main points from this judgment, which you can read here: https://clarionlegalcosts.com/2024/10/15/acc-others-a-useful-recap/
If you have any specific queries as Deputy in relation to the recovery of your work in ‘litigation support’ work, please do not hesitate to get in touch with us to discuss this.
You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.