Tag: Clarion COP Costs

Re ACC and Others: Guidance from the OPG

Laura SugarmanLeave a comment

On 9 January 2026, the Office of the Public Guardian published new guidance on Re ACC & Others, setting out their position on this judgement. This guidance explains how Deputies should apply the Re ACC and Others judgment from the Court of Protection and what actions the Office of the Public Guardian expects Deputies to take to remain compliant.

 

For background, this judgement sets out positions on issues concerning the authorities a professional Deputy will need to obtain legal services and how to manage any conflicts of interests.

 

The judgement sets out the position on the general authority of a Deputy. This is defined as the common or day to day tasks that are required to be undertaken to administer P’s estate effectively. Deputies have legal authority to act on behalf of someone who lacks capacity, but that authority is defined strictly by the court order that appointed them. The Re ACC judgment clarified what Deputies can and can’t do without asking the court for extra permission. The guidance explains how Deputies should act within those rules and manage legal work or potential conflicts of interest.

 

 

Deputies automatically have general authority to carry out everyday financial tasks if the court order includes those powers. That generally covers things like:

 

  • Managing bank accounts and investments
  • Letting or maintaining property
  • Preparing tax returns
  • Ensuring care costs are paid

 

 

However, this only applies as long as the activity is within the scope of authority granted by the court order. Deputies acting outside their authority do so at personal risk. Tasks which fall out of the general authority as outlined in the Deputyship Order template include:

 

  • Purchase of freehold or leasehold property
  • Sell, lease or charge freehold or leasehold property
  • Appoint an investment manager
  • Use P’s funds to provide for others
  • Make gifts to charity
  • Obtain a grant of representation
  • Execute or sign deeds or documents

 

It is important to note that unless specific authority is granted in the Deputyship Order, a property and affairs Deputy does not have authority to perform any of the above tasks. If a task isn’t expressly allowed by the Court Order, you must apply to the court for specific authorisation.

 

Litigation

 

Deputies cannot initiate litigation on behalf of P without specific authorisation from the Court of Protection. If a Deputy has specific authorisation to carry out certain tasks, they have authority to engage up to the point of receiving the Letter of Response, but no further.

 

If the contentious litigation may relate to personal welfare decisions, a Deputy cannot initiate litigation but can seek directions from the Court of Protection. Further, the general authority in a property and affairs Deputyship Order does not include appealing against a decision in an Education, Health and Care Plan. This is because this is a personal welfare issue.

 

Whereby urgent litigation is required, the Deputy may proceed at risk but should seek retrospective authorisation. However, this is not guaranteed to be given.

 

Conflicts of Interest

 

This guidance confirms the position on conflicts of interest should a Deputy wish to instruct a member of their own firm. To do so, prior authorisation from the Court must be obtained to carry out this work. If specific authority has not been granted, a Deputy should obtain three competitive quotes from suitable providers and choose the provider that best meets the person’s interests.

 

If these costs are expected to exceed £2,000 plus VAT, authority from the Court is required.

 

Position of the Office of the Public Guardian

 

The Office of the Public Guardian has a statutory duty to supervise all court appointed Deputies. They expect all Deputies to clearly demonstrate they have authority to undertake the work, show how conflicts of interest have been managed and include relevant decisions with respect to Re ACC in the annual Deputyship report. If a Deputy wishes to instruct a member of their own team, they must apply to the court for authorisation whereby projected costs are likely to exceed £2,000 plus VAT.

 

If a case has completed prior to the release of this judgement, the Office of the Public Guardian does not expect applications for retrospective authority to be necessary. However, the Office of the Public Guardian takes the stance that the conflict of interest set out in Re ACC extends to any instance whereby the Deputy is considering utilising services for P from their own firm and this constitutes a potential conflict of interest.

 

In Summary

 

This new guidance reinforces the importance of staying within the authority granted by the court, seeking specific court authorisation for litigation or other high value actions, managing conflicts of interest transparently and reporting properly to the Office of the Public Guardian about decisions made on behalf of P.

 

If you have any questions or would like further information about any of the above, please contact Laura Sugarman on laura.sugarman@clarionsolicitors.com

 

 

 

 

 

EG & Anor v P [2024] EWCOP 80 (T3)

hawamayetLeave a comment

In a recent Judgment handed down by Sir Andrew McFarlane, President of the Family Division, the Court of Protection considered an urgent application brought by Deputies acting for P, who sought a payment of £17,000 from his funds to repay a drug debt to an organised crime group.

Case Summary

The Protected Party (P), now in his 20s, suffered a severe brain injury as a toddler in a road traffic accident and was awarded a substantial compensation fund. Despite cognitive impairments, P lives independently and is not subject to any welfare Orders. He has been deemed to have capacity in some matters, including entering a cohabitation agreement (assessed in 2020). However, his property and affairs remain under Deputyship.

Over a year ago, properties associated with P were raided by police. A significant quantity of Class A and B drugs was seized and P was arrested. His Deputies were aware of the arrest but believed the matter was limited to potential criminal proceedings. The situation escalated when P informed his Deputies that he owed £17,000 to a drug gang. He had reportedly agreed to share in the profits of the drugs seized. Fearing for his safety, P requested a payment from his fund to settle the debt.

The Deputies found themselves in a near-impossible position:

  • If P had capacity, they would be obliged to comply with his request, provided the payment fell within his legal entitlements.
  • If P lacked capacity, they could refuse the request, but the matter would then fall to the Court to consider whether it was in his best interests.
  • Either way, making such a payment risked criminal and professional consequences.

The Deputies obtained Counsel’s advice, which confirmed that making the payment would likely breach the Proceeds of Crime Act 2002, particularly under section 328 (entering into or becoming concerned in arrangements facilitating acquisition, retention or control of criminal property). Even if done with the best of intentions, such a payment would be seen as enabling criminal conduct and could expose the Deputies to liability. The advice obtained from Gregory Treverton-Jones KC confirmed that the Deputies would be in breach of the Solicitors Regulation Authority’s Principles and Code of Conduct if they made the payment.

The Court commissioned an updated, decision-specific capacity assessment which was carried out by Dr Geoff Hill, a consultant clinical neuropsychologist. The key findings included:

  • P understood the nature of the decision but he could not weigh the long-term risks or recall and apply key information (e.g. risk of prosecution, long-term financial harm)
  • His decision-making was driven by immediate emotional relief (reducing stress), not reasoned evaluation.

Dr Hill concluded that P lacked capacity to make this particular decision despite functioning well in other areas of life.

 Ruling

Sir Andrew McFarlane concluded that:

  1. P lacks the mental capacity to decide whether to pay the £17,000 drug debt.
  2. The Court cannot authorise a criminal act, even if it may reduce stress or mitigate a personal risk to P.
  3. The Deputies acted appropriately in seeking Court guidance and the Court expressly refused to dismiss the application, instead issuing a formal refusal to sanction the payment.

Importantly, the Court refused to make a best interests decision because of the binding authority in Secretary of State for Justice v A Local Authority & Ors [2021] EWCA Civ 1527, confirming that the Court of Protection cannot authorise illegal conduct under any circumstances.

Summary

The Court refused to sanction the payment requested for the payment to be made to the drug gang, concluding that doing so would amount to facilitating criminal conduct. This Judgment offers important clarity on the limits of Deputies’ powers and reinforces the fundamental legal principle that the Courts cannot condone or enable criminality, even where the individual involved believes it is in their best interests.

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

Guideline Hourly Rates in the Court of Protection

Laura SugarmanLeave a comment

As you may be aware, the Master of the Rolls has accepted the recommendations of the Civil Justice Council Costs review. As per the recommendations, the Master of the Rolls has confirmed that ‘the 2021 Guideline Hourly Rates will be uplifted for inflation from 1 January 2024 in accordance with the Services Producer Price Index.’ The guideline hourly rates will then be uplifted annually by the Services Producer Price Index.

The new hourly rates are as follows:

The increase is approximately 6-7% depending on your geographical location.

What impact will the new Guideline Hourly Rates have on Court of Protection?

The new guideline hourly rates will come into effect from 1 January 2024. In order to ensure that COP Practitioners are able to claim these within bills, it is imperative that all retainer letters and client care letters are updated to reflect the new hourly rates. Without this paperwork, the practitioner will be unable to claim the new hourly rates as they would be in breach of the indemnity principle.

The indemnity principle states that ‘a successful party cannot recover from an unsuccessful party more by way of costs than the successful party is liable to pay his or her legal representatives’. When applied to Court of Protection costs, this means a Deputy cannot claim costs higher than those stated in their client care letter or retainer letter. Therefore, we recommend that all paperwork be updated to reflect the new guideline hourly rates in advance of 1st January 2024.

Please be aware that the retainers cannot be backdated, and therefore the rates cannot be claimed prior to 1 January 2024. It is also the case that if the client care letters are updated post 1 January 2024, the guideline hourly rates cannot be claimed prior to the date of the updated client care letter.

If you have any queries you can contact Laura Sugarman at Laura.Sugarman@clarionsolicitors.com for further information.

Civil Justice Council Report on Costs and the Impact on Court of Protection Costs

Laura SugarmanLeave a comment

Yesterday, the Civil Justice Council publishes their costs consultation responses and recommendations: https://www.judiciary.uk/civil-justice-council-costs-review-final-report/

Four main areas were considered; costs budgeting, guideline hourly rates, pre-action and digitisation and consequences of the extension of Fixed Recoverable Costs, with guideline hourly rates being the main area that had a potential to impact Court of Protection costs.

With respect to Guideline Hourly Rates, the majority of respondents found that the Guideline Hourly Rates had a useful role both as a starting point for summary and detailed assessment and indicate to the market generally the rates that would be considered reasonable by the Courts.

Almost all respondents believed that the Guideline Hourly Rates should be frequently updated as to ensure they serve their commercial purpose. However, views were mixed as to the frequency of which they were updated.

Abandoning the Guideline Hourly Rates was considered, however this was largely disagreed with by the respondents, with an argument that it would lead to uncertainty and cause difficulties for judges.

Various changes were considered, particularly as many respondents applying Guideline Hourly Rates outside of London noted that these were set considerably lower than the London hourly rates. A strong view was set that guideline hourly rates for London and elsewhere should not be different. Another suggestion was that the bands should reflect the complexity of the work as opposed to the location where the work was carried out.

It was recommended that the Guideline Hourly Rates be retained and in the short term, measures should be taken to create a new band for complex, high value and commercial work regardless of the location where the work was carried out. Also recommended was that Counsel’s fees should be assessed by reference to a guideline hourly rate. Further, when considering a departure from the Guideline Hourly Rates, the test being applied should be clearly stated.

Longer term recommendations included retaining the rates for the next five years, with a view to carrying out a Detailed Review at the end of the five years. Also recommended was a working group to ensure a satisfactory methodology can be identified and put in practice. Index linking was recommended to be carried out annually, in order to remove the need to carry out a form of detailed review on a regular basis. This will reflect the position of the market.

Overall, the immediate impact of the review is minimal to Court of Protection costs, however the Civil Justice Council will now consider how these recommendations are taken forward.

If you have any questions, please contact Laura Gillin at Laura.Gillin@clarionsolicitors.com

Guideline Hourly Rates 2021 & Other Changes Impacting COP Costs

Laura SugarmanLeave a comment

From 1st October 2021, the new Guideline Hourly Rates will come into force. This means that from this date, subject to your retainer/client care letter, you will be able to claim the new hourly rates. The new rates are as follows:

 Grade AGrade BGrade CGrade D
London 1£512£348£270£186
London 2£373£289£244£139
London 3£282£232 £185£129
National 1£261£218£178£126
National 2£255£218£177 £126

The new Guideline Hourly Rates will displace Master Whalan’s decision in PLK & Others (2020). The new GHR differ across geographical locations, but overall, they are increased from the outdated 2010 GHR. For most junior fee earners, the increase is less than those awarded in PLK & Others.

In respect of Court of Protection costs specifically, the report quotes Master Whalan in the decision of PLK & Others, where he concluded that ‘ultimately I am not satisfied that the evidence supports Mr Wilcock’s contention that COP firms have experienced a significant increase in hard and soft overheads’.

It was also noted that ‘in general, however, COP assessments can be conducted by costs officers utilising the GHR as the reasonable hourly rate. The issue as to the appropriate status or grade of fee earner for the work in question will always be a matter for discretion of costs officers and/or costs judges’. When considering the PLK rates, the decision was made that ‘the GHR rates (if approved) are the rates to be used, not the PLK rates’.

The impact of this for Court of Protection practitioners is that the rates stated in the PLK & Others judgment dated 30 September 2020, as set out below, will no longer apply to costs to be assessed by the Senior Courts Costs Office, and that the new GHR will instead be applicable.

As well as this, there will also be an increase to Court fees which will also impact COP matters. The new Court fees will impact all COP matters, with the COP assessment fee increasing from £85 to £87. The cost of a costs appeal in COP matters will increase from £65 to £70.

Alongside policy change, there have been many changes at the SCCO too with several experienced Costs Officers leaving or retiring, creating inconsistent assessments and large delays.

In addition, the proposed COP E-Bill is almost ready for consultation and once approved, will create a more streamlined assessment process. The SCCO are also now accepting electronic PDF bundles for assessment, which is positive news for the environment. However, electronic systems are not without their flaws and it’s likely to take some time for the SCCO to adapt fully.

If you have any questions about any of the issues raised, please contact Laura Gillin at Laura.Gillin@clarionsolicitors.com

The Process of a Request for Reassessment

Stephanie KayeLeave a comment

Unlike any other area of law, there is a process regarding Court of Protection assessments that is not in any written case or law, however a spoken arrangement passed down by Costs Judges in order to save judicial time – the Request for Reassessment.

What is it?

Once a Court of Protection Bill of Costs has been assessed at the SCCO, there may be various reductions made that you would not agree with, whether that be a reduction to your hourly rate, time spent liaising with P that was deemed ‘too excessive’ without any reference to case law or document reviews that were ‘unnecessary’. There is a chance to appeal this with the correct justification, prior to arranging a hearing.

It came about following a review of the appeal process by Master Haworth, as only oral hearings, which are expensive and time consuming were used for appealing amounts of time which did not justify the use of the process. Often the cost and time spent in an appeal outweighed any proportionate benefit.

Upon reviewing the assessment, if you are unhappy with it, you can lodge a request for reassessment with the SCCO.

The process for the request for reassessment is as follows:

  • If you are unhappy with the outcome of the assessment, you can request a reassessment within 14 days of the original assessment.
  • The Bill of Costs is returned to the Costs Officer who undertook the initial assessment for reconsideration in respect of the issues requiring reconsideration.
  • The Costs Officer will generally accept where they have made an error. They base their assessment on the points raised before them, so these points need to be justified and they need to have all of the facts to make an informed decision. It is not worthwhile to simply disagree with their approach – you need to explain why you disagree with particular reductions and on what grounds they should increase the amount allowed.
  • The assessment will be reconsidered on paper and returned to you with additional comments following the Costs Officer’s reassessment.
  • If you are still unhappy with the assessment, you can proceed to an oral hearing before a Costs Master; but be aware that this can be an expensive and timely process.

Here at Clarion, we are more than happy to review any assessments and consider an appeal; we can also lodge the request for reassessment on your behalf. Please get in touch with a member of our Costs Team to find out more.

Joshua Sidding is a Paralegal in the Court of Protection Team of the Costs and Litigation Funding Department at Clarion Solicitors. You can contact him at Joshua.sidding@clarionsolicitors.com and 0113 222 3245, or the Clarion Costs Team on 0113 246 0622.

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Court of Protection Court Fees: An Update

Laura SugarmanLeave a comment

In order to have a bill of costs assessed, it is necessary to pay a Court Fee to the Senior Courts Costs Office (SCCO). Depending on the type of the bill, the fee amount varies. Currently, within the Court of Protection, the cost to have a bill assessed is £225 for a detailed bill and £115 for a short form bill of costs. A short form bill is a bill with profit costs up to £3,000 and a detailed bill of costs is a bill with profit costs above £3,000.

From the 22nd July 2019, these fees are due to change. By way of The Court Fees (Miscellaneous Amendments) Order 2019 there is due to be a reduction to the Court Fees due to have a bill of costs assessed. S4 (3)(a) of the Act states that the fee for filing a bill of costs to be assessed will be £85.00. This is dramatic change within the rules and something that will affect all professional Deputies who wish to have their bill of costs assessed, making it cheaper to do so.

The most significant aspect of the Act is that going forward, there will be no distinction between fees for filing short form and detailed bills of costs. As stated, this will be taking place from the 22nd July 2019 and so all professional Deputies should be aware of this when sending any bills to the SCCO to be assessed on or after this date.

There will also be changes made to application, appeal and hearing fees for all Court of Protection matters. These can be found in s3 The Court Fees (Miscellaneous Amendments) Order 2019.

 

What Costs Are Reasonable for a Deputy? JR v Sheffield Teaching Hospitals NHS Foundation Trust provides an explanation.

Stephanie KayeLeave a comment

At a glance, the costs of a professional Deputy may seem expensive. However, the level of knowledge and work undertaken by a Deputy justifies these costs, especially in a case where the award was of substantial value. Once broken down, the costs of a Deputy are reasonable and can be justified.

Case summary

The Protected Party is a 24-year old with severe cerebral palsy. He suffered intracranial haemorrhage and brain injury following a traumatic premature birth and during a breech delivery. His litigation friend brought a clinical negligence claim on his behalf, arguing that the Protected Party’s injuries could have been avoided by a caesarean delivery. The Defendant accepted liability as the brain injury could have been avoided.

At the settlement hearing, some heads of loss had been agreed, but the costs of the professional deputy remained in dispute.

All parties accepted that the Protected Party lacked capacity to look after his own financial affairs, and predicted that this would be the case for the remainder of his life time. Therefore, a Professional Deputy was to be appointed; the cost of which continued to be argued.

It was deemed that although the Protected Party’s parents were supportive, it was not appropriate for them to administrate the Protected Party’s financial and property affairs. They had stated that they wanted to work alongside the Deputy, not against them. The Protected Party had some level of understanding and communication, so the Deputy was obliged to liaise directly with him.

What is considered reasonable for Deputyship costs?

For annual management

Year Claimant Costs Defendant Costs Award
1 30,605 plus cost of 2 visits 14,000 inclusive of 2 visits 30,000 inclusive of visits
2 21,492 plus cost of 2 visits 9,000 inclusive of 2 visits 20,000 inclusive of visits
3 17,040 plus cost of 1 visit 8,000 inclusive of 1 visit 15,000 inclusive of visits
4 17,040 plus cost of 1 visit 8,000 inclusive of 1 visit 15,000 inclusive of visits
5 onwards 11,232 plus cost of 1 visit 7,000 inclusive of 1 visit 10,000 inclusive of visits

The parties agreed that for extras such as transfers of Deputies, Wills, co-habitation or pre-nuptial agreements and “crisis payments”, a further £38,160.00 was reasonable.

The Judge allowed a total of £898,993.00.

This judgment can then be compared to the PNBA Facts & Figures 2017/18 (pages 258-288) whereby this outlines what could be classed as reasonable when awarding damages to cover the cost of the claimants Deputyship fees. Please refer to the table below.

Year and Expected Work to be Undertaken During the Deputyship Management Estimated Costs
Deputyship Application £6,638
1st Deputyship Year £32,570
2nd Deputyship Year £23,666
3rd Deputyship Year £19,775
Thereafter annual costs of £15,959 x 21.28 £339,607
Applications for appointment of new Deputy (x2) £7,588
Statutory Will Application £14,538
Contingency for crises £6,360
Preparation of tax returns £600 p.a x 24.28 £14,568
Winding up – single payment £1,800
 

 

Total Costs

  

 

£467,110.00

Finally, it’s noteworthy that all Deputyship costs are assessed by the Senior Courts Cost Office and the fee earners are regularly limited to the SCCO Guideline Hourly Rates whilst costs are awarded for Deputyship work, this is further scrutinised on assessment based on what is reasonable, proportionate and necessary in the Protected Party’s best interests.

If you have any queries, please do not hesitate to contact Georgia Clarke or the team at COPCosts@clarionsolicitors.com

 

Tips for Recoverability

Stephanie KayeLeave a comment

All COP Lawyers know that the SCCO Guideline Hourly Rates can be frustrating when trying to recover all of your costs as opposed to other areas of law in which higher rates can be charged. As a result, some believe it to be unreasonable that a Costs Officer ca reduce the costs down even further on assessment. Here are some things that we have seen helps improve the recoverability of your fees.

Using 3 minutes to arrange and make payments. I know you’re told this on every assessment you’ve had back from the SCCO but ignoring it isn’t going to make your recoverability any better. The Costs Officer isn’t going to change their mind. Arranging payments are viewed as an office overhead so its best practice for you to delegate this work to a Grade D fee earner and limit the time spent and charged for to 3 minutes. The Costs Officer is going to see the effort being made and as a result, this will help with your reputation with the Court and will improve your Bill assessment outcomes.

You, like all other COP Lawyers dislike the low guideline rates that you’re restricted to. If there are any matters of complicated work, outline this to us or your other Costs Draftsperson and request enhanced rates on that particular issue. We have found that there is a higher chance of success for an enhanced rate when it is applied specifically to a complex and difficult issue than when it is applied to the whole bill. Doing this allows the Costs Officer to see specifically what was difficult and justifies why you are requesting the additional fees. We are often proactive in applying these for you when a complex matter arises, such as jurisdictional differences, the requirement of language interpretations, abusive Clients etc.

The Costs Officer will reduce or remove a second fee earner attendance at a meeting in accordance with the decisions made within the Matter of Garylee Grimsley (December 1998). Therefore, it is incredibly important for your recovery that the dual attendance is explained and justified in your attendance note. Just a line to outline why the second person was required will do, were they the main fee earner alongside the Deputy? Did the Client or Client’s family request they be present? Was the Client abusive or dangerous? It may be allowed at a reduced rate however it is

As simple as this one may sound, keep your file in chronological order and easy to get through. The last thing you want to do is make the Costs Officers life difficult when they’re assessing your costs.

Furthermore, ensure that you accurately time record your work. We appreciate that different firms have differing levels of technology available, but this need not be the most complex and time consuming system. If you do have the option to tag your time entries, this will help all parties involved when it comes to the costing of the work. Bulk time recording will cause difficulties so avoid this as much as possible. Also, ensure that the time spent is reasonable from the outset and delegate where appropriate. However, please don’t self-edit your time because if this is later reduced on assessment you will have doubly been reduced where not necessary.

Additionally, including details of the Client’s financial position assists the Costs Officer in ensuring the work undertaken is in proportion to the level of assets held and increases the chances of your time being recovered, especially in circumstances where the Client’s assets are significant and various financial schedules and reviews are required. See https://clarionlegalcosts.com/2015/06/09/how-valuable-is-the-protected-partys-estate/ for further information on this point.

I hope this helps and if you have any further suggestions or questions I would be happy to hear and discuss them further at bridie.sanderson@clarionsolicitors.com

Unusual Granting of an Order to Prevent the Protected Party from knowing the full details of his Personal Injury Settlement following an application made by his Professional Deputy.

Stephanie KayeLeave a comment

In this personal injury case, the judge had to grapple with an unexpected question – should a Deputy, appointed to manage the personal injury payment made to a brain-injured claimant, be allowed to not tell the claimant the exact amount that was awarded to him?

The case of EXB v FDZ

The case of EXB v FDZ (2018) was very unusual in that it involved an application by the Protected Party’s professional Deputy, and his mother as Litigation Friend, to prevent the Protected Party from knowing the full details of his personal injury settlement, which was deemed to be in his best interests.

This was a complex matter, as the Court recognised that withholding such information inadvertently affected the Protected Party’s rights. Judge Foskett explained in his judgement that he had never come across this issue before and he called upon assistance from Ms. Butler-Cole as a ‘friend of the Court’.

The Protected Party

The Protected Party sustained orthopaedic injuries, alongside a severe brain injury following a road traffic accident. The Protected Party was a backseat passenger in a car driven by the First Defendant. The Protected Party was not wearing a seatbelt and his damages were reduced accordingly, following an admission of contributory negligence.

Why was it in the best interests of the Protected Party to withhold settlement info?

The applicants submitted evidence from both themselves and professionals which detailed the reasons as to why it was in the Protected Party’s best interests to withhold the settlement information.

The Protected Party’s neuropsychologist stated that “Such knowledge would translate and impact upon his behaviour”. It was believed that the Protected Party would become fixated by the sum of money, that it would lead to him being extremely vulnerable and placed into a situation where he was likely to be financially exploited. Interestingly, the Protected Party himself expressed to his Deputy and the Court that he would be better off not knowing the sum; however, he also stated that he was conned into making such a statement. Following the accident, the Protected Party was very impulsive, and he often became very anxious when it came to money, struggling to budget and often living beyond his means.

The Judge gave careful consideration to the evidence submitted, as well as reviewing the relevant legislation, such as the Mental Capacity Act 2005 and the UN Convention on the Rights of Persons with Disabilities (CRPD). Following this, the Judge held that the Protected Party lacked the relevant decision-making capacity, finding that it was in the Protected Party’s best interests not to be told the value of the reward. The Judge also considered whether it was within the scope of a normal Deputy Order not to reveal the sum; however, the Deputy argued that it would make the Deputy’s life more difficult if the Protected Party believed that he was personally withholding the information and it was considered more appropriate for the Deputy to state that the Court prevented him from doing so.

Costs of the application

The next issue that arose was in respect of the costs of the application. The Claimant sought the costs of the application to be paid by the Third and Fourth Defendants of the Personal Injury claim, as their tort had necessitated. The Third and Fourth Defendants objected to paying the costs. Their defence stated that “they should not be responsible for the costs because all of the issues between them and the Claimant were concluded by the Settlement which was approved in April 2018” and that this particular issue was a ‘solicitor/own client’ dispute. Within the remit of the initial Personal Injury claim, there was no claim for costs attributable to this issue within the Schedule of Loss and there was also the fear that there may be an “open-ended commitment to pay the costs associated with any repeat applications”.

As the issue had been dealt with under the Court of Protection, it was necessary to apply the Court of Protection costs rules. The general rule being that where the issue concerns financial matters, the costs of all parties are to be borne from the Protected Party’s estate (Rule 19.2). The Court does have a broad discretion to depart from the general rule, if circumstances made a different order more appropriate (Rule 19.5). In this case, the Third and Fourth Defendants had not been made formal parties to the application, but they had been provided with an opportunity to make representations regarding the Costs Order being sought.

Judge Foskett held that the costs were to be borne by the relevant Defendants, as the need to make the application arose directly from their actions following the injury caused to the Protected Party, therefore departing from the general rule.

It will be interesting to see whether there will be any similar applications and what the outcomes will be. The Judge has invited the appropriate bodies to consider these matters and decide whether a consultation on this issue will be required.