5 reductions in COP assessments that you need to know about!

At Clarion, we deal with over 2,000 COP bills of costs per year and we monitor common reductions. Every case is completely different, but you do not need to simply accept the reductions made to your bill of costs and you can request a reassessment, if appropriate to do so. We recognise the hard work that COP practitioners put into their matters and are passionate about working with our clients to help them recover fair and reasonable costs. Based on our experience, we have identified 5 recent reductions which we think should be on your radar.

Document time reductions

It is common for time spent on documents to be reduced or struck out where the Costs Officer considers it to be excessive, but it may be necessary to challenge these reductions. If you can provide reasonable justification as to the time spent, the necessity of the task at hand and the grade of fee earner undertaking the task, then it can be beneficial to provide more information to the Costs Officer and request that the reduction is reconsidered. A good example of this is time relating to the OPG102 in exceptional cases, where the Protected Party’s liquid assets are high or their estate is particularly complex.

Contact with internal teams

It is not uncommon for the Deputy to require support from another area of expertise in a management period or application. Examples could include the Conveyancing Team in respect of property matters, or the Employment Team regarding the directly employed care staff. The contact with internal teams is commonly reduced as ‘inter-fee earner’, however it is often essential in progressing the matter. If an external team were to be instructed, the time would likely be much more costly, therefore the instruction of the internal team can often be in the Protected Party’s best interests. It can be beneficial to advise the Costs Officer of the situation and the necessity of the internal teams’ assistance, to allow them to reconsider reductions appropriately.

Lack of evidence

Whereby the Costs Officer strikes out time due to the ‘lack of evidence’ or ‘no file note’, this should be challenged by simply providing the relevant file notes. Evidence for all work done should be on file, but if something is missed, this can be provided retrospectively which allows the Costs Officer to reconsider the time they disallowed.

Excessive contact with the Protected Party/Family/Case Managers

A common reduction is excessive contact with the Protected Party, their family or the Case Manager.  A high level of contact may be necessary for a number of reasons. The Protected Party might call the fee earner very regularly, or there might be issues with directly employed care team which would be vital for the Case Manager to deal with, communicating with the Deputy to resolve them properly, or a family member may act as the main point of contact. If there are reasons behind the high levels of  contact, they should be set out to the Costs Officer to justify it and show that the time spent was proportionate to the matter. We regularly see blanket reductions to high levels of contact, which can often be resolved during reassessment in the right cases.

Travel Reductions

Reductions to travel time aren’t common, however they do still occur. Travel reductions should be challenged if they are not reasonable. The Protected Party can often live very far from the Deputy and if the meeting is reasonable, the mode of transport is appropriate and the time spent is justified, a reduction of this kind should not be accepted.

We are happy to advise any professional Deputy who is unhappy with the outcome of their assessment and continue to work with law firms nationally to help them recover fair and reasonable costs. Please contact Casey for more information at casey.mcgregor@clarionsolicitors.com

COP hourly rates – the wait is over!

Following a Hearing on 26 May 2020, the judgment by Master Whalan was handed down today, indicating a 20% increase to the rates payable in Court of Protection cases. After 10 years of no pay rise, the judgment is welcomed by professionals nationally.

The case was brought by 4 professional deputies from 4 different law firms as applicants collectively, namely Wrigleys Solicitors, Freeths LLP, Boyes Turner LLP and Gillhams Solicitors. The issue brought before the Senior Courts Costs Office was that of hourly rates and the fact that the Guideline Hourly Rates (GHR) had not changed for 10 years, but factors like inflation, increasing workload and growing responsibility on professional deputies had caused concern as to the sustainability of Court of Protection work. Clarion prepared the 4 bills of costs for submission, claiming the GHR of 2010 plus a percentage uplift to reflect RPI inflation (of approximately 31%) between 2010 and 2019.

A Directions Hearing took place on 17 April 2020 and the parties were asked to produce evidence in support of the claim. All four deputies, Clarion and instrumental resources from willing members of the Professional Deputies Forum produced evidence, further reinforcing that the 2010 rates were not fit for purpose.

Richard Wilcock of Exchange Chambers represented the parties at the Final Hearing, and relied on the  relevant factors in the Civil Procedure Rules, the GHR Review Committee and recent case law in his submission, all pointing to the fact that changes to the rates payable were essential. He made two key arguments; the first being that COP work is specialised, combined with the fact that deputies carry, in general, higher overheads, including increasing overhead time, which should mean that the current rates are paid with an uplift. His second argument was presented as an alternative solution, in that if the SCCO wanted to rely on the GHR as a starting point, then it must apply an empirical uplift to reflect the incidence of inflation between 2010 and 2019.

Due to inconsistencies in the evidence produced relating to overheads, Master Whalan was not convinced by the first argument. He said that the findings “do not, in my view, demonstrate that the burden is one that is exclusive to COP work or that it is atypically high in comparison with that experienced by practitioners in comparable areas of practice.” He confirmed that the approach set out in Re: Smith and others [2007] and Yazid Yahiaoui and others [2014] was still correct and applicable.

Maser Whalan then moved on Counsel’s secondary argument. He emphasised that he had no power to review the GHR, but recognised that they couldn’t provide “reasonable remuneration unless these rates are subject to some form of periodic, upwards review.” Importantly, Master Whalan states in his judgment, “I do not merely express some empathy for Deputies engaged in COP work, I recognise also the force in the submission that the failure to review the GHR since 2010 threatens the viability of work that is fundamental to the operation of the COP and the court system generally.”

On the topic of inflation, Master Whalan questioned whether CPI was more appropriate than RPI. He  said “I am satisfied that in 2020 the GHR cannot be applied reasonably or equitably without some form of monetary uplift that recognises the erosive effect of inflation”. He further specifies that “If the hourly rates claimed fall within approximately 120% of the 2010 GHR, then they should be regarded as being prima facie reasonable” and provides a suitable table of the GHR with a 20% uplift to assist the Costs Officers undertaking future COP assessments:

 Guideline Hourly Rates
BandsABCD
London 1£490£355£271£165
London 2£380£290£235£151
London 3£275-320£206-275£198£145
National 1£260£230£193£142
National 2£241£212£175£133

Master Whalan concludes by saying that the rates above are applicable to all outstanding assessments, regardless of the year the work was undertaken. He also advised that the recommendations of the GHR Working Group must be adopted in preference to his findings.

This outcome is brilliant news for COP practitioners, providing overdue ratification for the work they conduct. Importantly, the outcome will mean that this area of work continues to be sustainable.

Clarion are delighted to have been a part of this case. We will be applying the 20% uplift to all cases going forward, and are happy to revise existing bills which have not yet been assessed to reflect the changes. Please contact stephanie.kaye@clarionsolicitors.com for further information and queries.

Can you recover your costs for time spent delegating in COP cases?

My talented colleague, Helen Spalding recently wrote a blog about the decision in  Fuseon Ltd, R. This 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. You may be thinking, what does this have to do with Court of Protection costs?

In the decision, Master Gordon-Saker touched on inter-fee earner discussions and 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.

Whilst this is not a COP case, this clearly shows that reasonable time spent delegating is not only expected, but should be recovered. So why does this not happen consistently in COP cases?

The Senior Courts Costs Office rely on the decision in Tina Jayne Cloughton (1999) and regularly note this on assessments to reduce or disallow time spent delegating, but it is unclear why a 21 year old decision is quoted, when we have new case law which clearly contradicts it.

There are many historic cases which are regularly referred to in COP assessments which are arguably outdated and no longer applicable. There is increasing frustration amongst professional deputies because COP work is still considered more routine than other areas of law, despite the significant responsibilities personally placed on deputies and the niche, complex and important issues which are dealt with every day. Delegation is particularly relevant to COP cases because most work is expected to be undertaken by Grade D and C fee earners, but how can that be achieved without some input, guidance and delegation from senior fee earners, who bear the responsibility and authority?

We hope that the message in the recent decision in Fuseon Ltd, R. will filter through to COP cases, and we will continue to recommend that reasonable time spent delegating complex work and communicating with colleagues is claimed within the bill of costs.

If you would like to know more, please contact stephanie.kaye@clarionsolicitors.com or call 0113 3363402.

 

 

 

 

The Importance of Correct Certification of Court Documents

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.

Levels of contact in Court of Protection cases – what is reasonable?

The Case of Trudy Samler 2001 considers the level of costs incurred regarding contact and whether this is reasonable. The case looks into whether these costs are instigated by the Protected Party and whether the Deputy should be expected to be paid for them. Master O’Hare advised that part of the Deputy’s duty is to prevent such expenses being incurred as it is their responsibility to look after the Protected Party’s financial affairs. The Office of the Public Guardian and the Senior Court Costs Office advise that only one home visit per year is reasonable in routine general management costs unless there is reasonable justification for more attendances. Deputies should be prepared to give reason if several attendances have occurred during one management period.

The case concerned a young lady who suffered severe brain injuries who was subsequently awarded substantial damages. A professional Deputy was appointed by the Court to manager her property and financial affairs. The Deputy’s bill of costs was lodged on October 2000 and provisionally assessed by Costs Officer Edwards on 21 November 2000. By way of a letter dated January 2001, the Deputy did not accept the provisional assessment and set out in numbered paragraphs the reasons relied on in support of the restoration of the costs, which had been disallowed on assessment. On 13 February 2001, a hearing took place and some of the reasonable costs were restored. However, the Deputy still felt that some of the other items disallowed could be justified and restored and so by way of a letter dated 23 February 2001, sought the guidance of Mr R Stone at the Public Trust Office.

The letter included five questions to be referred to the Master of the Court of Protection. The appeal related to work done by the Deputy in relation to three interviews with the Protected Party and four meetings at St Andrews Hospital. An allowance had been made for two meetings, which in total were equal to four hours. At the hearing, the Deputy gave background to the matter and explained some of the attendance notes of the meetings that were in question.

The five numbered questions are set out below:

  1. Can the Deputy be paid for speaking to both carers and case managers to talk about the care and rehabilitation regime and the Protected Party’s well being and needs, assuming that the time spent is not excessive?

Master O’Hare advised that in his view, the Deputy can be paid if the issues discussed are substantial, if there is no alternate person to speak for the Protected Party and if the Protected Party’s estate is large enough to justify such expense.

  • Can the Deputy be paid for all contact with the Protected Party instigated by the Protected Party irrespective of the matters being raised?

Master O’Hare advised that his answer would be no. He confirmed that the Deputy should strive to minimise and avoid necessary expense. Master O’Hare further confirmed that he accepts that each case depends on its own circumstances.

  • Can the Deputy be paid for discussions with the family about the care requirements, existing care regimes, possibility for changes in the future?

Master O’Hare confirmed that the answer he gave to question one seemed to be appropriate for this question.

  • Can the Deputy be paid for discussions with the Protected Party, family, carers and case managers where there are difficulties with the care regime if the Deputy believes that the current regime is in the Protected Party’s best interests or would be subject to proper amendment?

Master O’Hare advised that his answer to question one and 3 apply equally here.

  • Can the Deputy be paid for quarterly visits to the Protected Party to deal with reporting on budgeting, asset performance, income and expenditure?

Master O’Hare advised that the practice for many years has been that it is easy for a Deputy to justify one visit to the Protected Party each year but that each succeeding visit must be separately justified. He also confirmed that the questions that usually arise in respect of this are:

  • Could the subject matter of the later visit have been dealt with at the earlier one, or postponed to a later one?
  • Could the progress made by the meeting have been achieved more economically by way of a telephone call or correspondence?
  • Was the Protected Party and his or her family if any (meaning here any adult relatives with whom he or she resides or in whose care he or she is) warned that the costs of such meeting and the costs of time spent travelling and travel expenses, will all be charged?
  • If the meeting involves time spent travelling by the Deputy, could this travel have been arranged so that the cost of it could be apportioned with other cases handled by the Deputy?

Master O’Hare advised that each case depends on its circumstances and with some Protected Party’s, the number of visits in the early months might be higher than the number of visits once a reasonable pattern has been established.

The latest Precedent H guidance notes

The precedent H guidance notes have never aligned with the precedent S guidance notes (Phases and Tasks Reference and Lookup table in Precedent S (bill of costs)) until the update to the precedent H guidance notes which was made last month, this update has addressed some of those discrepancies.

Please find below the amendments that have been made to the guidance notes:

Pre-action: The precedent H guidance notes states that settlement discussions, advising on settlement and Part 36 offers before proceedings were issued are to be included in the Preaction phase. However, in the Precedent S guidance these discussions are included in the ADR/Settlement phase (task “Other Settlement Matters”) . The precedent H guidance notes must be followed therefore any preaction settlement discussions should be included in the preaction phase. 

Issue/statements of case: The precedent H guidance notes have been amended to include “amendments to statements of case” in this phase, the previous guidance stated that these should be excluded from this phase. This amendment has resulted in alignment with the Precedent S guidance. 

CMC: The precedent H guidance notes have been amended to include any further CMCs that have been built into the proposed directions order whereas previously the notes stated that any additional CMCs were not to be included in this phase. The position remains regarding any estimated CMCs that have not been proposed in the directions order, these are to be included as a contingent cost. Any disclosure work, i.e. list of disclosure issues, EDQ  should be included in the disclosure phase.  

Budget – The costs in relation to this phase includes inconsistencies which present numerous difficulties. The Precedent H Guidance Notes includes “correspondence with opponent to agree directions and budgets, where possible”, and “preparation for, and attendance at, the CMC”. The same applies in relation to the PTR phase, which includes “preparation of updated costs budgets and reviewing opponent’s budget”, “correspondence with opponent to agree directions and costs budgets, if possible” and “preparation for and attendance at the PTR”. While the precedent H guidance note specifically excludes preparation of the costs budget for the first CMC, it doesn’t specifically exclude preparation of Precedent R. The Precedent S description of this task is “work on budgeting between the parties following initial completion of the first budget, including the monitoring of costs incurred against the budget and any applications for variation of the budget” –  it doesn’t mention the drafting of Precedent R and seems to relate to work post CMC.

Furthermore, in para 7.2 of PD3E the 2% cap relates to all recoverable costs of the budgeting and costs management process other than the recoverable costs of initially completing the Precedent H. If some costs budgeting items are included in the CMC and PTR phases (i.e. following the Precedent H Guidance Note), practically how is the 2% figure on the front page of Precedent H calculated? Should it include the budgeting items which appear in the CMC and PTR phases of Precedent H, or is it exclusive of them? And, what exactly is meant by “budget process” in relation to this 2% cap?

Unfortunately there is no guidance regarding the budget process or “associated material” that is referred to in the guidance notes – does this include composite summaries, breakdowns of costs?

One solution for this phase is to time record in line with the precedent S guidance notes and then when it comes to preparing the budget assess what aspects of the % cap belongs in the CCMC stage. If the time is recorded as CCMC it is a more onerous task to ascertain what element of the CCMC phase is relevant to the % cap.

Trial: The guidance note has been amended to now include counsel’s brief fee in the trial preparation phase rather than the trial phase. 

Settlement phase: The precedent H guidance note previously excluded mediation from this phase, this has now been amended to include mediation. 

Definition of budgeted and incurred costs – CPR 3.15 and PD 3E para 7.4 Incurred costs are now all costs incurred up to and including the date of the first costs management order, unless otherwise ordered. Budgeted costs are all costs to be incurred after the date of the first costs management order.

Sue Fox is a Senior Associate and the Head of Costs Management 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.

 

 

 

 

Changes in relation to CPR Practice Direction 21

From 6 April 2019, Practice Direction 21 of the CPR will be amended to make it compulsory for a bill of costs or a “informal breakdown in the form of a schedule” to be prepared and filed with any application for the approval of payment of expenses from the damages of a protected party or minor.

Many cases now settle by way of a JSM or Mediation. We recommend preparing a Bill of Costs for the JSM or Mediation in order to:

  1. Try and reach settlement of costs at the ADR meeting (to avoid the time and expense of detailed assessment);
  2. If a settlement on costs cannot be achieved, then to obtain a healthy payment on account; and
  3. Proceed swiftly post settlement with any application under CPR 21 (where applicable)The bill or schedule should make a clear distinction between inter partes and solicitor/own client costs. In terms of a schedule, we recommend preparing a statement of costs for summary assessment (Form N260 or N260B) which can be adapted, where appropriate.The bill or schedule will enable the Judge at the approval hearing to properly determine the appropriate amount to be deducted from damages, which may include (in terms of a Solicitor) a success fee, ATE insurance premium and any inter partes costs shortfall (if claimed).This blog was prepared by Andrew McAulay who is a Partner at Clarion and the Head of the Costs and Litigation Funding team. Andrew can be contacted at andrew.mcaulay@clarionsolcitors.com or on 0113 336 3334.

 

Clarion Costs Legal Updates

We have incorporated a collection of our blogs into a Blog booklet. The blogs were current at the

date of publication, however these may have now been superseded. Please visit our blog

(https://clarionlegalcosts.com/) for continuous updates on all costs law.

• Page 1 – Introduction

• Page 2 – Good news for those that prepare an accurate costs budget by Sue Fox

• Page 4 – Fixed Costs – the effect of acceptance of a Part 36 offer by Matthew Rose

• Page 6 – Payment on Account or Final Invoices? – another solicitor/own client costs

battle… by Andrew McAulay

• Page 7 – The Disclosure Pilot Scheme – what roles do costs estimates and precedent H

costs budgets have? by Sue Fox

• Page 8 – Proportionality – a flurry of cases by Andrew McAulay

Joanne Chase

• Page 9 – Part 36 offers, the basis of assessment, and knowing your expert by

Joanne Chase

Please click here

For any assistance, please contact the Costs and Litigation Funding Team at Clarion Solicitors 0113 246 0622.