Tag: Clarion Costs Team

Fixed Costs and Remuneration of Professional Deputies

Laura SugarmanLeave a comment

On 18th June 2025, the Office of the Public Guardian issued new guidance in relation to fixed costs and remuneration of professional Deputies. The purpose of the guidance is to set out the general principles regarding fixed costs and the Public Guardian’s position on issues relating to fixed costs.

As you will be aware, rule 19.13 of the Court of Protection Rules confirms that Deputies can be remunerated for costs they incur when performing their duties as Deputy. The Court may order that the Deputy is allowed to take fixed costs. These are outlined in Practice Direction 19B (PD19B), which was recently updated, on 1st April 2024. Whereby the management period ended before 1st April 2024, the rates set out in the previous PD19B would apply, however if the period covered by the fixed costs ends on or after 1 April 2024, the rates outlined in the latest version of the Practice Direction apply. Generally speaking, a management period would run on an annual basis, however this guidance confirms that if the period is less than a year (for example if there is a change in Deputy or P passes away) the fixed costs claimed should be apportioned accordingly.

It is important to ensure that if you want to have your costs assessed but the Court Order only allows for fixed costs, the Deputy will not be allowed to take any costs higher than fixed costs as per the case of The London Borough of Enfield v Matrix Deputies Ltd & Anor. Our advice would be to apply to the Court of Protection to have the costs clause varied to allow for the costs to be assessed in these circumstances.

The guidance also reiterated the definition of net assets as per the case of Penntrust Ltd v West Berkshire Council & Anor. This case confirms that net assets is the total assets minus total liabilities. This includes any property owned by P, regardless of if they are currently residing in the same.

Whereby P has net assets of less than £20,300, the Deputy will not be permitted to have their costs assessed. Instead, they can take an annual management fee not exceeding 4.5% of P’s assets. The guidance also confirms that if there is a pending settlement which would take P’s assets significantly above £20,300, the Deputy should apply to the Court of Protection to seek authority to delay taking costs until the settlement funds have been received. This is a move away from previous guidance which has stated that the Deputy can only have costs assessed if P has assets above the threshold on the anniversary of the Court Order.

Further guidance has now been issued in relation to tax returns. Fixed costs can be taken for the completion of a basic tax return and complex tax return. It has been difficult to determine what would account for a complex tax return and therefore this guidance is very welcomed. The guidance states that:

‘PD 19B defines a basic tax return to cover cases where P’s income is derived primarily from bank or NS&I interest and taxable benefits, discretionary trust or estate income. A complex tax return may be defined as one which also includes income form more complex investments including stocks, shares and bonds, rental property, business income and foreign property. Public authority deputies may charge up to £89 for a basic tax return as set out at paragraph 18 of Practice Direction 19B to include bank or NS&I interest and taxable benefits and may charge an amount not exceeding £89. They may charge P for the completion of more complex tax returns as a specialist service P would be expected to play for if they retained capacity.’

Guidance has also been provided in the event of P’s death. The Public Guardian recommends that the Deputy agrees any costs with the personal representative of the administrator of P’s estate. Further, the guidance states that the Deputy is not permitted to take final costs after P’s death, if the estate has not yet been settled.

If you have any questions, please get in touch with Laura Sugarman for further information – laura.sugarman@clarionsolicitors.com.

Oakwood Solicitors Ltd v Menzies [2024] UKSC 34

Katie SpencerLeave a comment

Case overview

The case of Oakwood Solicitors Ltd v Menzies [2024] UKSC 34 explores a client’s right to request an assessment of legal fees, focusing on the interpretation of “payment” in Section 70(4) of the Solicitors Act 1974. The Supreme Court ultimately ruled in favour of the client, reinforcing protections that allow clients to review and negotiate billed costs.

Initial Proceedings

The Respondent, Oakwood Solicitors, were instructed by the Appellant, Menzies, following his involvement in a Road Traffic Accident, under a Conditional Fee Agreement.

The claim settled for £275,000, after which the Respondent issued a ‘Final Statute Bill’ outlining the fees incurred throughout the case, totalling £73,711.20. The Respondent deducted from the damages an amount to cover the shortfall in costs after deducting costs recovered from the Defendant, as agreed in the CFA.

On 1 April 2021, the Appellant initiated proceedings to request an assessment of the final bill. To determine whether the Appellant could bring these proceedings, the Costs Judge assessed the date on which payment of the bill was made. The Costs Judge decided that payment had occurred over 12 months before the assessment (apparently taking the date as being when the Final Statute Bill was delivered).

Legal Issue

Section 70(4) of the 1974 Solicitors Act states:

‘The power to order assessment conferred by subsection (2) shall not be exercisable on an application made by the party chargeable with the bill after the expiration of 12 months from the payment of the bill.’

Applying this rule, as the payment of the bill occurred over 12 months prior to the assessment application, the Appellant was barred from seeking an assessment.

Appeal to the High Court

The Appellant appealed to the High Court, which allowed the appeal on the grounds that there had been “no sufficient settlement of account” to warrant treating the deduction as payment under Section 70(4).

Appeal to the Court of Appeal

The Respondent then appealed to the Court of Appeal, which found that, because the Appellant had agreed in the CFA to the deduction of monies and had been sent a Final Statute Bill no further agreement on the bill amount was necessary. The Court of Appeal allowed the appeal.

The Appellant subsequently appealed to the Supreme Court.

Supreme Court Decision and Reasoning

Lord Hamblen delivered judgment on the matter, considering several key points to reach a conclusion. Section 70 was concerned with the right to assess solicitors’ bills of costs with a focus on the proper amount to be charged, having regard to whether costs have been reasonably incurred and are reasonable in amount.  The client needed an opportunity to consider the bill and decide to what extent it should be paid. Section 70 envisages payment after the delivery of the bill and rather than by delivery of the bill.

 

The right to have the bill assessed is intended to protect the client’s interests, which are compromised if the client is not given the opportunity to consider the bill of costs.  Consideration of the meaning of ‘payment’ in Section 70(4) and previous authorities supported the Appellant’s case.

In considering the requirement for a settlement of account, the cases of Re Bignold (1845) and Harrion v Tew (1987) were referenced, both of which were found to support the Appellant’s position that an agreement to the bill is necessary. Lord Hamblen said, “the authorities show a long established understanding as to what payment by deduction or retention requires…both generally and with specific reference to section 70…The need for a settlement of account has been consistently stated…This requires an agreement to the sum taken or to be taken by way of payment of the bill of costs.” Therefore, there needed to be agreement as to the amount to be paid in respect of the bill of costs and mere delivery of the bill was not sufficient.

 

Lord Hamblen felt that the Respondent’s submissions as to practical implications of this conclusion were overstated, in any event these could not dictate the correct interpretation of ‘payment’ in the legislation, and the need for agreement by way of a settlement of account was long established.

Consequently, the appeal was allowed which restored Bourne J’s order for assessment.

 

Katie Spencer is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Getting it Right – CPR 2.8 and calculating dates for service

Joanne ChaseLeave a comment

Calculation of Time

The recent case of Corfield v Howard [2024] EWHC 2727 (Comm) is a reminder of the importance of calculating time for service and filing of Court documents.

In the above matter, the Defendant applied for declaratory relief as to the meaning of enforcement of a settlement agreement scheduled to a Tomlin order. In accordance with a consent order, skeleton arguments were due to be served and filed one clear day before the hearing. The Court staff noted that no skeleton arguments had been filed and served by the due date. Their time was therefore taken up identifying the breach and writing chasing letters to the parties’ representatives. Both parties subsequently filed their skeleton arguments. HHJ Judge Davis-White KC sated that he did not need to enquire further as to where the fault lay, however, he said that Counsel and instructing solicitors should liaise in good time to ensure that the required skeleton argument can be prepared by Counsel by the required time.

The Judge went on further to state that:

“the delivery of skeleton arguments in accordance with guidance of court order is essential for the efficient running of the courts”. Although the Judge was able to proceed with the hearing on this occasion, the Judge did warn that “the court is likely to impose sanctions in cases as egregious as these”.

Although there were no sanctions in this case, it serves as a timely reminder that compliance with court imposed deadlines is mandatory and, in an appropriate case, the Court may impose sanctions for a failure to comply. Getting it wrong can be costly, and, in the extreme, fatal to the case.

The Rules

CPR Part 6 is at the heart of the rules relating to service of documents, and Practice Direction 6A relates to service within the United Kingdom.

CPR 2.8 sets out how we go about calculating time, and parts 2.8 (2) and (3) specifically explains the clear day rule which often catches practitioners out:

“(2) A period of time expressed as a number of days shall be computed as clear days.

(3) In this rule ‘clear days’ means that in computing the number of days –

(a) the day on which the period begins; and

(b) if the end of the period is defined by reference to an event, the day on which that event occurs are not included.”

CPR 2.8 (4) continues to explain that:

“Where the specified period –

(a) is 5 days or less; and

(b) includes –

(i) a Saturday or Sunday; or

(ii) a Bank Holiday, Christmas Day or Good Friday,

that day does not count”

Examples

Where a CMC is listed for 28 March and the Court orders bundles to be filed no later than 7 days before the CMC, the last date for filing is 20 March.

Alternatively, where a witness statement must be served 5 days before a hearing listed on Tuesday 18 March, the deadline for service is Monday 10 March.

Interestingly, CPR 44 practice direction 9.5 (4) provides different rules for the filing and service of a statement of costs before a fast-track trial and other hearings;

“The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought as soon as possible and in any event –

(a) for a fast track trial, not less than 2 days before the trial; and

(b) for all other hearings, not less than 24 hours before the time fixed for the hearing.

Where a fast track trial is listed for 1.30pm on the first Tuesday after Easter, taking into account the clear day rule and CPR 2.8 (4), the statement of costs must be filed and served no later than the Tuesday before. Wednesday and Thursday provide the 2 clear days, with Good Friday, Easter Saturday, Sunday and Monday not counting. Therefore, in this instance, 7 days before the hearing – suddenly the 2 days turn into 7 days.

However, if it were an interim application hearing listed for 1.30pm on the first Tuesday after Easter, the statement of costs must be filed and served no later than 1.30pm on Maundy Thursday.  What is crucial here is that this rule provides for hours and not clear days. Therefore, filing and serving at 1pm on Maundy Thursday would be perfectly acceptable despite it being within no clear days of the hearing. The clear day rule does not apply when the rules specify the deadline as a number of hours rather than a number of days.

Conclusion

Being aware of this subtle difference could prove to be a very useful tool for any practitioners who are under time constraints for the filing and service of Court documents. A note of advice –  if in doubt then check the rules. The rules regarding filing and service can easily catch you out, particularly bearing in mind that there are also rules surrounding the method of filing and service, i.e. service by email, fax etc., in addition to those relating to timing.

Joanne Chase is a Legal Director in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

ACC & Others – A Useful Recap

Leah MorrisLeave a comment

Introduction

The case of ACC & Others [2020] EWCOP 9 was a landmark judgment by HHJ Hilder in the Court of Protection that clarifies the authority required by Deputies to obtain legal services and the management of conflicts of interest.

This judgment arose from three separate proceedings involving Deputies connected to the law firm Irwin Mitchell. In two of these cases, the Deputy was the Irwin Mitchell Trust Corporation and in the third case the Deputy was a partner in the firm. Notably, the Deputyship Orders did not explicitly grant or deny authority to instruct solicitors or initiate legal actions, leading to questions about litigation costs and potential conflicts of interest in a Deputy connected to Irwin Mitchell appointing Irwin Mitchell to act in litigation.

‘General Authority’

HHJ Hilder sets out the background to the three sets of proceedings, the position of the parties and the relevant law, explaining that the Orders appointing the Deputies contained a general authority and that these proceedings had arisen “…because the Court had concerns about what the Applicants regard as a reasonable interpretation of ‘general’ authority.”  The three cases “demonstrate a clear need for further amplification of the Court’s approach” but the learned Judge approached that task cautiously, stating that “‘General’ authority is not susceptible to exhaustive definition.”

In order to amplify the Court’s approach, HHJ Hilder asked a series of questions in relation to authorisation required to conduct litigation on behalf of P, further proceedings in the Court of Protection, to what extent ‘general authority’ encompassed authority to take legal advice on behalf of P, the line between seeking advice and conducting litigation, urgent matters, the addressing of conflicts of interest, cases where the Deputy is not the instructing party, acting as litigation friend and where P has capacity to give instructions for the work in question.

The Conclusions of HHJ Hilder

HHJ Hilder’s conclusions on these questions are set out in an Appendix to the Judgment and are stated below.

  1.  The “general” authority to manage property and affairs which is granted by the standard Deputyship order encompasses those common or ordinary tasks which are required to administer P’s estate efficiently.
  2. Authority to make a decision / do an act in respect of P’s property and affairs encompasses such ordinary non-contentious legal tasks, including obtaining legal advice, as are ancillary to giving effect to that authority.
  3. In particular:

a) authority to purchase or sell property includes conveyancing

b) authority to let property includes dealing with leases or tenancy agreements

c) authority to conduct P’s business includes dealing with employment contracts of that business

d) “general” authority encompasses:

i) the preparation of an annual tax return, and therefore obtaining advice as to completion of the return

ii) discharging P’s financial responsibilities under a tenancy, and therefore obtaining advice as to liabilities under the tenancy.

iii) applying P’s funds so as to ensure that the costs of his care arrangements are met, and therefore dealing with employment contracts of directly employed carers

What does this mean for Deputies in practical terms?

As alluded to above, general authority for the management of property and financial affairs will usually encompass tasks such as conveyancing, managing leases, business and associated employment contracts, preparing tax returns (excluding complex returns), taking advice on any tenancy issues, arranging care and where authority encompasses steps in contemplation of contentious litigation, which includes obtaining Counsel’s opinion.

The Court Order appointing the Deputy will specifically state the authorities allowed for the most part. Where work looks to fall outside of the general authority, specific further authority may be required.

Outside the general authority of property and financial affairs Deputies, specific authority is required to conduct litigation. Deputies can take advice on ‘contentious litigation’ on a matter but only up to receiving a letter of response and no further. This has been further clarified to include non-contentious work too including conveyancing work. Specific authority is also required to make payment to a third party and includes any costs incurred by a member of the Protected Party’s family. A property and affairs Deputy also has no authority to make decisions in relation to a health and welfare matter.

Additional authority from the Court should be sought where litigation is required for continuing healthcare appeals, education appeals and appeals against health and care plans, as these fall outside the scope of the general authority. Authority is also required from the Court of Protection to let property including taking steps to form a view as to whether there are grounds to evict a tenant.

For prospective Deputies they should consider whether there is a need to instruct somebody else to provide legal advice at the time they apply to be appointed. Three quotes should be provided including one from their own firm, if desired, then the Deputy should make a best interest decision as to which provider meets the needs of the Protected Party.

For existing Deputies, there is a continuing expectation to consider the limits of their own specific authority and to address any conflicts of interest. Where costs are likely to exceed £2,000, authorisation is required and as for prospective Deputies three quotes should also be obtained. The quotes should be included within the annual Deputyship report, providing justification as to why the chosen firm was instructed. Both monetary and non-monetary significance to the Protected Party will be relevant. If the Deputy wishes for the work to remain in-house and the quote is over £2,000, an Order will be required from the Court.

Conclusion

Overall, this case has had significant implications for the governance of Deputyships, contributing to the amended Deputyship Standards published by the Office of the Public Guardian on 13 February 2023. The principles established in this judgment aim to safeguard the interests of vulnerable individuals and provide clearer guidelines for Deputies in their legal and financial responsibilities.

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

Can the paying party go to prison for not paying costs owed?

ujjainimistryLeave a comment

The appeal of Smith v Kirkegaard [2024] EWCA Civ 698 involved a contempt application and consideration of whether non-compliance with an order for costs amounted to a contempt of court punishable by committal to prison.

Case Background

In 2018, Respondent – Mr Kirkegaard, discontinued his original claim for libel against Appellant – Mr Smith, because four allegedly defamatory blogs, published by Mr Smith, were deemed to be ‘expressions of opinion’ at a preliminary hearing in 2019. This meant that a claim for libel was likely to fail. Mr Kirkegaard was ordered to pay half of Mr Smith’s costs, which were summarily assessed in the sum of £13,500 and payable within 14 days of the order. But this was not paid.

Following discontinuance of the claim in May 2020, Mr Smith was thereby entitled to his costs of the action. A final costs certificate was issued by the SCCO in September 2021 in the sum of £26,668.43 to be paid by Mr Kirkegaard; this was endorsed with a penal notice. This was also not paid.

Mr Kirkegaard failed to make any payments under the costs orders despite several attempts by Mr Smith to enforce them, including initiating enforcement proceedings in Denmark and Germany, investigating public records, and filing an application to be questioned about assets. Mr Smith alleged that Mr Kirkegaard evaded service by hiding his location generally.

Application to commit for contempt.

In July 2023 Mr Smith proceeded to file a contempt application, alleging that Mr Kirkegaard had made a false statement regarding his named address and had failed to pay two costs orders. This was dismissed by the judge for a range of issues. Permission to appeal this decision was however granted by Warby LJ in March 2024.

Was the failure to pay costs enforceable in contempt proceedings?

It was determined that a failure to pay a costs order could not be pursued by contempt proceedings.

Mr Smith relied on Australian case law (PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2020] FCA 685) to argue that the court could treat a deliberate failure to pay a judgment debt as contempt if they had the means to pay. This argument was based on the fact that in March 2020, Mr Kirkegaard had proffered to have an annual income of £72,000 and could make £500 monthly instalments.

The Appeal Decision

Lord Justice Dingemans dismissed Mr Smith’s line of argument on the basis there is a different procedural and statutory regime relating to non-payment of judgment debts in England and Wales.

Although CPR 81.4 provides for enforcement by an order for committal for disobedience of a judgement or order, the Debtors Acts 1869, effectively abolished committal to prison for non-payment of judgment debts, apart from some exceptions in sections 4 and 5.

LJ Dingemans suggested that the section 4 exceptions and Section 5 as a whole, did not apply in this case. The default remains a contempt in these circumstances, but not punishable by committal.

Conclusion

LJ Dingemans, LJ Bean and LJ Asplin all agreed that the non-payment of the costs order was a contempt of court, but it could not be enforced by imprisonment for contempt.

The courts have developed other remedies, such as the freezing order, to help creditors enforce judgment debts. The courts may also exercise a discretion not to permit a defaulting party to participate in further proceedings – but that did not arise in this case.

Clarion’s Costs and Litigation Funding team can be contacted at civilandcommercialcosts@clarionsolicitors.com

The latest update on COP assessment delays from the SCCO

Lydia MarshallLeave a comment

The SCCO has released a new update providing a further update on the current turnaround for COP assessments and e-filing.

In summary, the Costs Officers are currently assessing bills received around the middle of June 2023, and the Admin Team are working on returning bills that have been assessed, and were received by them in the 3rd week of April 2024.

With regards to e-filing, new filings submitted around the 2nd week of January 2024 are currently being dealt with, and final costs certificate requests received in the 4th week of April 2024 are being processed at present.

Whilst the SCCO have asked customers not to chase any bill that falls into the 15 month window, as outlined above, we recommend keeping a record of when bills were submitted and accepted at the SCCO and to chase anything that is now greater than 15 months.

You can contact the SCCO directly at scco@justice.gov.uk with any queries or speak to your Cost Draftsman who may be able to assist. When contacting the SCCO directly, please provide the SCCO reference for a quicker response.

Please see below the notice directly from the SCCO with guidance on what to expect with regards to the delays.

Notice-to-COP-Customers-29.04.2024Download

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

Costs reduced by 54% at Summary Assessment: Leading and/or Junior Counsel?

Helen ApplebyLeave a comment

Summary assessment takes place following a trial or hearing. It is a broad brush approach to deciding how much should be paid. The parties provide brief details of the costs they are claiming, via a costs schedule/N260, the Judge hears from the parties and then reaches a decision.

Saudi Arabian Airlines Corporation v Sprite Aviation No. 6 DAC [2024] provides a brief in-sight as to what may be considered during the Summary Assessment process.

Christopher Hancock KC sitting as a High Court Judge had considered a preliminary issue and agreed with the Defendant’s submissions that the matter should be reserved to the trial Judge. As a result, the Claimant was ordered to pay the Defendant’s costs.

The Defendant’s Bill of Costs totalled £42,267.31. The Claimant argued that this should be reduced to £9,540.92 for several reasons:-

(1) Hourly rates (the rates claimed exceeded Central London SCCO Commercial Guideline rates);

(2) Inappropriate use of grade A fee earners and failure to delegate. The Claimant argued that some work should have been delegated to more junior members of staff;

(3) Excessive time spent; and

(4) Excessive Counsel’s fees on the basis that the hearing did not require two Counsel. Junior Counsel alone would have been sufficient and that if junior Counsel alone been instructed, the fees could have been reduced from £22,000 to about £5,000, a saving of £17,000.

In response, the Defendant stated that the Claimant’s arguments took no account of the fact that there had had to be two hearings and not one, through no fault of the Claimant or Defendant. It was the Defendant’s view that the criticism of the hourly rates was misplaced given the very specialist nature of the dispute and the fact that both parties were instructing similar firms in this regard. Furthermore, it was their view that the choice to use higher rate fee earners served to reduce rather than increase costs, because those fee earners had enjoyed a closer contact with the dispute.

Finally, in relation to utilising both Leading and Junior Counsel, it was the Defendant’s submission that leading Counsel had conducted the advocacy at the hearing itself with Junior Counsel undertaking the additional tasks.

The Judge considered the issues. He adopted a broad brush approach and reduced the Claimant’s costs to £22,000.00. His reasoning for this reduction was that he remained of the view that only Junior Counsel was necessary and therefore struck out Leading Counsel’s fees. Given the significance of such a reduction, the Judge was content to determine that no very significant reduction should be made in relation to the other points (i.e. hourly rates/time/delegation).

Clarion’s Costs and Litigation Funding team and can be contacted at civilandcommercialcosts@clarionsolicitors.com.

 

Update from SCCO on COP assessment delays

Lydia MarshallLeave a comment

Please see below an update notice released by the SCCO, providing a further update on the current turnaround for COP assessments.

In summary, the Costs Officers are currently assessing bills received around the beginning of June 2023, and the Admin Team are working on returning bills that have been assessed, and were received by them in the 2nd week of April 2024.

With regards to e-filing, new filings submitted around the end of December 2023 are currently being dealt with, and final costs certificate requests received in the 2nd week of April 2024 are being processed at present.

Please see below the notice directly from the SCCO with guidance on what to expect with regards to the delays.

Notice-to-COP-Customers-15.04.2024-1Download

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

MA & AA, Re (Re Section 21A of the Mental Capacity Act 2005) [2023] EWCOP 65

Leah MorrisLeave a comment

Background

The case of MA & AA, Re (Re Section 21A of the Mental Capacity Act 2005) [2023] EWCOP 65 concerned an 84 year old woman who was diagnosed with dementia (MA) and an 89 year old man who has been diagnosed with dementia, epilepsy, heart disease and cerebrovascular hypertension (AA). MA and AA are husband and wife and had been married for 63 years. Following their diagnoses, the parties were moved into the same care home. In due course, this care home could no longer meet the needs of MA, and therefore she was moved to a different placement.

A plan was then made to reintroduce contact between MA and AA via telephone, video call and then in person. After only two in person contact sessions, the local authority issued a COP9 application to end all contact, by any means, between MA and AA on the grounds of distress and the risks posed by MA to AA at the end of contact sessions. This application was strongly opposed by MA, and the judge was asked to decide on future care and residence, whether were to be any further attempts at contact and whether a removal of contact represented a breach of rights under Article 8 of the European Convention on Human Rights.

Considerations of the Judge

The Judge considered various issues surrounding the case including care and residence, contact, declaration, the positions of the parties and the law, including capacity and best interests. The Judge also reviewed the case of HH v Hywel Dda University Health Board & Ors [2023] EWCOP 18 which set out how the Court should proceed in a situation involving two Protected Parties where the best interests decisions are interconnected.

The options available on behalf of MA were;

  • MA remaining at placement 2 and AA remaining at placement 1; or
  • MA remaining at placement 2 and AA residing at placement 3.

Decision

The Judge stated that ‘it is universally accepted that the starting point in this matter is that wherever possible, a husband and wife should have contact with each other’ but the evidence shows, sadly, AA no longer recognises MA. Given this analysis, he decides he had ‘not found any evidence that the respondents have acted in a way which is disproportionate and incompatible with a convention right.’ Therefore, it was concluded that due to MA’s erratic behaviour during face-to-face contact and AA’s lack of interest in video meetings, it was determined to be in both AA and MA’s best interests that they each remain at their current placements and for them to not have any form of contact at this stage.

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

A Party’s impecuniosity is not a reason to depart from the normal position on costs

Katie SpencerLeave a comment

In the case of K v W (Respondent’s Costs on Application for Permission to Appeal) [2023] EWFC 300 (B) (25 October 2023), HHJ David Williams outlined the costs implications for unsuccessful appeal attempts within the Family Court. The ruling ordered the Mother to pay the Father’s legal costs totalling £6,021.

The Appeal

Within the judgment, HHJ David Williams referred to the Appellant and Respondent as the Mother and Father. The Mother made an oral application to appeal the decision of the District Judge at the handing down of judgment hearing, which was refused. The Mother filed an Appellant’s notice for leave to appeal.

The Father was required to file a skeleton argument in response to the appeal and attend the hearing. At the permission to appeal hearing, the Appellant’s notice was refused on all grounds.

Costs of the Appeal

The Father filed a Schedule of Costs in advance of the hearing seeking a costs order against the Mother in the sum of £6,021. The Father submitted that as his attendance at the hearing was requested by the Court and due to the application being unsuccessful, a costs order should be ordered in his favour. The Father’s Schedule of Costs included £2,000 for Counsel’s brief fee and £1,000 for drafting the skeleton argument.

The Mother opposed the costs order and submitted that she had already paid the sum of £20,000 to Dr Proudman for drafting her skeleton argument and a £8,000 brief fee for attending the hearing. The Mother further submitted that she had been struggling financially and had only £100 in her bank. Nonetheless, her financial contributions to her own legal costs raised questions about her ability to pay the costs submitted by the Father.

Paragraph 4.24 of Practice Direction 30A states:

“Where the Court does request –

  • submissions from; or
  • attendance by the respondent,

the court will normally allow the costs of the respondent if permission is refused.”

In this case, the Court requested that the father file a skeleton argument and attend the hearing. For the Court to depart from the usual position as set out in the Practice Direction above, there must be a compelling reason. The Court held that “The mother’s alleged impecuniosity is not a reason to depart from the normal position on costs, although it may be relevant to how or when any costs order is to be satisfied.”

Furthermore, HHJ David Williams stated “it is clear from the mother’s own case that she either had or has been able to access funds of circa £30,000 in order to pay the fees of her counsel, Dr Proudman. If the payment of those fees has brought about the mother’s impecuniosity, as alleged, that cannot be a reason not to make a costs order in favour of the father.”

The Judge held that as the Mother was previously refused permission to appeal and knew the risks of having to pay the Father’s costs, there was no reason for the Father to be left out of pocket. When assessing the costs, the Judge concluded that the costs claimed by the Mother were significantly higher than the costs claimed by the Father. The Judge made reference to both fees for the skeleton arguments, noting that the Mother’s was 10 times more than the Father’s. An order for costs was ordered in favour of the Father and the full sum of£6,021 was held to be reasonable and proportionate.

Katie Spencer is a Paralegal Apprentice in Clarion’s Costs and Litigation Funding Team. You can contact her on 07741 988925 or at katie.spencer@clarionsolicitors.com.