All you need to know about Counsel’s Fees in COP – How are they assessed?

Deputyship management is not always plain sailing, and on occasions, professional Deputies may be instructed to take on a case whereby the background is complicated, the circumstances are unusual and where Counsel are required to progress the matter. We have investigated the general rules applied when Counsel’s’ fees are to be assessed, and here is everything you need to know.

On what basis are the reductions made?

Firstly, it is important to recognise that in Deputyship matters, all costs are open for assessment. When a Deputyship Order is issued, it provides the authority for the professionals involved in the case to have their costs assessed. This includes the Professional Deputy, Counsel and in some instances, if a translator is required, their costs would also be subject to assessment.

What do the SCCO look at when deciding whether Counsel’s fees should be allowed?

Following a conversation with an experienced Costs Officer, advice was obtained regarding what aspects they consider when reviewing Counsel’s fees, once a bill of costs had been submitted for assessment. As there are no clear “black and white” guidelines for the assessment of Counsel’s fees, the Costs Officers are able to use their discretion on a case by case basis to review what would be a reasonable and proportionate amount to allow. Approximately, £300.00 per hour is allowed for a hearing, and £250.00 per hour for general work, however based on the complexity, volume of work undertaken, geographical location of Counsel and the breakdown of work outlined on Counsel’s fee note, these hourly rates could be revised by the Costs Officer.

It is important to note that it is your responsibility to work with your costs provider to include a detailed narrative within the Bill of Costs, explaining and justifying Counsel’s fees and involvement. For example, the Costs Officer would question why a Leeds based firm would instruct a London based Counsel. Details of the facts of the case, any hearings that have taken place, and the necessity of the work conducted should be included within the bill. Furthermore, when the bill is submitted for assessment, a Counsel’s fee note should be provided with the Bill of Costs. A further point to take into account is that not all Counsel’s fee notes are detailed enough, and therefore this increases the importance of including information relating to the complexity and background of the case when preparing the Bill of Costs.

A general understanding is that if Counsel had claimed for overall “refreshing themselves on the case” as they have not worked on the matter for a prolonged period of time this would not be allowed upon assessment as it would be deemed disproportionate and unreasonable.

Are the Deputyship firm expected to cover the reductions?

Counsel and professional Deputies are both aware that their costs are to be assessed and therefore, they are also aware that their costs could be reduced upon assessment. It is recommended for Counsel and the professional Deputy to make an agreement before the Bill of Costs is sent for assessment, whether the Deputy’s firm would cover the shortfall if reductions are made, or Counsel agrees to refund the reductions. Secondly, it was advised to wait until the Bill of Costs has been assessed before settling Counsel’s fees.

Do Counsel have a right to dispute the reductions?

If Counsel’s fees have been reduced upon assessment, they have a right to dispute the decision. This would be done in the format of a Request for Reassessment, prepared by your costs provider, outlining the reasons why you disagree with the reductions made and evidence in support of this.

It is noteworthy that Counsel are considered to be an “interested party” and therefore the professional Deputy would have to serve a copy of the provisionally assessed Bill of Costs on Counsel, and receive confirmation that they accept the amount allowed before the SCCO will issue the Final Costs Certificate, which provides authority for the Deputy and Counsel to be paid.

If you have any queries, or require any further information then please do not hesitate to contact Georgia Clarke at georgia.clarke@clarionsolicitors.com

Advertisements

Proportionality in the Court of Protection

You will have all heard about the ‘Jackson Reforms’, which so far, have not been something that Court of Protection practitioners have had to be too concerned about – until now.

As part of the ‘Jackson Reforms’, a new test of proportionality was introduced. Proportionality now trumps reasonableness and ‘necessity’. Even if a cost was reasonable and was necessary, it can be disallowed on the basis of proportionality. The purpose of this reform was to tackle disproportionate claims for costs.

The case of BNM and MGN Limited (see https://clarionlegalcosts.com/2016/06/10/who-needs-fixed-costs/#more-876) is an interesting case to consider in relation to the new test of proportionality, where a bill of costs was reduced from £167,389.45 to £83,964.80 on the basis of proportionality. This is one of the first cases to really demonstrate the power of CPR 44.3 (2) (‘Jackson test of proportionality’), which states:

Where the amount of costs is to be assessed on the standard basis, the court will –

(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

 (b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

 This ‘Jackson test of proportionality’ is something that has primarily been having an impact on civil and commercial claims for costs, however, we (Court of Protection Costs team at Clarion) are now starting to see the new test being applied to Court of Protection cases.

Under the new test, the Senior Courts Costs Office must assess a bill of costs (line by line) and determine what is reasonable. Thereafter, the new test of proportionality can be applied. The Costs Officer has the power to stand back and ask ‘was this a proportionate sum to incur on this matter taking into account all the factors relating to the case’, and in some instances, the answer can lead to significant further reductions to a Bill of Costs.

Going forward, we believe that this is something that will have an impact on Court of Protection cases. Not only will your costs be assessed based on what was reasonably incurred, but the SCCO can also consider other factors, such as the value of the Protected Party’s estate and other non-monetary influences when considering whether the assessed (reasonable amount) is proportionate.

We considered a recent assessment whereby the Protected Party’s estate was worth approximately £46,000.00. The Deputy submitted a bill of costs totalling £12,200.00. The bill was provisionally assessed at £11,500.00, but was thereafter limited to £9,000.00 due to the issue of proportionality, as a result of the value of the estate.

There is no guidance as to what is proportionate in these cases, however, the Costs Officer has the authority to determine what is proportionate at their own discretion. It will be interesting to see how this is applied going forward and whilst this area is still developing, requests for reviews or appeals may be appropriate. Albeit the financial position of the Protected Party is key, other factors such as the conduct of the Protected Party, the complexity of the matter and any key elements (international and business) may be influential in justifying your claim for costs.

If this is something which you require assistance with, please do not hesitate to contact myself or our team at COPCosts@clarionsolicitors.com.

Philpott – Is it reasonable to claim for updating accounts ledgers?

It is common knowledge that the SCCO refer to certain case law when assessing Bills of Costs in Court of Protection matters. Although the Costs Officers assess your incurred costs using their own discretion as to what is reasonable and proportionate, there are a number of themes which can be identified from the assessments we are seeing. If something stands out in which case law has determined that it cannot be charged to the Protected Party, it will be reduced or disallowed upon assessment.

A more recent case has come to our attention as we have seen the case quoted more recently on provisionally assessed Bills of Costs. In the case of Philpott, the written judgement was not published, however the SCCO were able to share a few comments made by Master Haworth whilst delivering his judgement. Essentially, whereby time has been spent updating the Protected Party’s financial records or schedules of income and expenditure, this has been noted as an ‘office overhead’ in some instances.

During the delivery of his judgement, Master Haworth made the following comments inter alia:-

“It seems to me that the inputting of data into P’s ledger is not fee earning work.  At most it is bookkeeping which, to my mind, is an overhead of a solicitor’s practice.

This work has to be distinguished from for example, reviewing or perusing the data to come to a decision as to what then needs to be done with a P’s funds.  To my mind that may well amount to fee earning work for which the solicitors can charge separately at the appropriate rate. 

I know that I have a number of further appeals on similar lines which may well result in a written judgment from me in due course.  Nonetheless, it may be helpful for you to circulate this memo to the Costs Officers in the interest of consistency in the future.”

 Resultantly, we recommend that this task is delegated appropriately to a Grade D fee earner or non-fee earner where possible.

If you have any queries in respect of the above, please do not hesitate to contact the Costs Team at COPCosts@clarionsolicitors.com

 

Failure to Word Tomlin Order Correctly Can Result in Adverse Costs

We have often encountered difficulties when costs orders have not been termed correctly.  One example is where a party failed to include the provision for costs to be assessed in the final Tomlin Order, and simply provided for the losing party to pay the winning costs ‘subject to agreement’. There was no reference to detailed assessment.

In order to commence detailed assessment proceedings, it is necessary to have a ‘right to detailed assessment’ (CPR 47.7). Such a right can arise only as a result either of a court order which states that costs are to be assessed, or a deemed order (for example as a result of acceptance of a CPR 36 offer, or upon notice of discontinuance under CPR 38). Importantly, where an order does not mention costs the general rule is that no party is entitled to its costs (CPR 44.10(1)).

Therefore, in the absence of the inclusion of the terms ‘subject to detailed assessment’ the court held that there was no authority for the costs to be assessed and adjourned the Detailed Assessment hearing.

The costs implications couldn’t be clearer.  When concluding any claim it is vital that any Tomlin or Consent Order specifically makes reference to costs to be assessed.  Costs Lawyers can assist with the terms of costs orders ensuring that these are completely watertight, and therefore avoiding the possibility of adverse costs or expensive satellite litigation.

You can contact the Clarion Costs Team on 0113 2460622, or by emailing Andrew.McAulay@clarionsolicitors.com.