Tag: billofcosts

Proportionality

Tanya ForanLeave a comment

The SCCO now insist on the inclusion of the details of P’s estate in respect of COP Bills sent for assessment where this information is not readily available within the Bill narrative. This is to ensure that P is not below the hardship threshold or that the Bill drawn up will not take P into hardship and to ensure proportionality in respect of the size of P’s estate and the costs being claimed.

Proportionality concerning the assessment of costs is covered under Part 44.3(5) of the Civil Procedure Rules, which states that costs incurred are proportionate if they bear a relationship to:

  • The sums in issue in the proceedings;
  • The value of any non-monetary relief in issue in the proceedings;
  • The complexity of the litigation;
  • Any additional work generated by the conduct of the paying party;
  • Any wider factors involved in the proceedings, such as reputation of public importance; and
  • Any additional work undertaken or expense incurred due to the vulnerability of a party or any witness.

N.B Each factor should be given equal weighting BUT in practice there is a tendency to give superior weighting to value.

Further under Part 44.4 (1)(a)(i) the Court will have regard to all circumstances in deciding whether costs were proportionately and reasonably incurred or proportionate and reasonable in amount when assessing costs on the standard basis. The Court will also have regard to the amount or value of any money or property involved.

In a recent matter submitted to the SCCO a Costs Officer reduced the profit costs in a Bill of Costs by over 25% on the basis that the costs claimed were disproportionate to the size of P’s estate. It is therefore important to keep proportionality in mind at all times, particularly when submitting Bills for assessment.

The Court of Protection Rules 2007 (Overriding Objective) states that the Court will “deal with the case in ways which are proportionate to the nature, importance and complexity of the issues.”

As set out above there is a tendency by the Court to give superior weighting to value. It is important to consider the following factors:-

  • Settlement awards
  • LA funding
  • Periodic payments
  • Business interests
  • Ongoing litigation
  • Money Trusts
  • Liquid assets
  • Investments
  • Property

The conduct of P or their family may have caused additional work by the Deputy. If this is the case details of this should be included within the Bill narrative. The likely issues that may arise include, extended family involvement, a complex care dynamic, difficult parents of P, frequent requests for funds and a directly employed care team.

Complexity is also a major factor and should also be taken in account. Often the Deputy will need to take the following matters into account and substantial work may be completed in relation to the following areas:-

  1. Complex investments
  2. Extraordinary applications
  3. Business interests
  4. International elements
  5. Money held in Trusts
  6. Specialist care needs
  7. DOLS

Following the Jackson Reforms there is more weight on proportionality, and it is always worthwhile remembering that the burden of proof is on the party seeking costs to resolve any doubt which it may have as to whether costs were reasonable and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

Tanya Foran is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact Tanya by email at Tanya.Foran@clarionsolicitors.com or the team at costssupport@clarionsolicitors.com.

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

Stephanie KayeLeave a comment

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