Tag: Clarion Costs Team

Increase in Court of Protection Fixed Fees

Stephanie KayeLeave a comment

Fixed Fees in the Court of Protection have increased, further to amendments to Practice Direction (19)B.

There have not been any significant amendments to the Court of Protection Rules which govern the practice and procedure in the Court of Protection since their introduction in 2007. In many people’s opinion, the update is long overdue.

The amendments have been made to strengthen the Court of Protection’s powers to deal with the current challenges, particularly the increase in caseloads and complexity of cases. The increase to Fixed Fees may encourage some financial Deputy’s to follow this route instead of having their costs assessed, which would ultimately free up some of the Senior Courts Cost Office’s capacity to assess bills and bring clarity and consistency to the costs assessment process, as Court of Protection cases continue to rise.

Please see below the revised fixed fees in the Court of Protection:

  Original Fixed Fees (plus VAT) Amended Fixed Fees (plus VAT)
Appointment of Financial and Property Deputy £850.00 £950.00
Appointment of Health and Welfare Deputy £500.00 £555.00
Appointment of a Trustee £385.00 £500.00
First General Management Year £1,500.00 £1,670.00
General Management for the Second Management and Subsequent management years £1,185.00 £1,320.00
Preparation of the Deputyship Report £235.00 £265.00
Preparation of a Basic HMRC income tax return £235.00 £250.00
Preparation of a Complex HMRC income tax return (NEW) N/A £600.00
Conveyancing Minimum sum
of £350 and a maximum sum of £1,500, plus disbursements.		 Minimum sum of £400.00 and a maximum sum of £1,670.00, plus VAT and disbursements.
Interim Payments Bill up to 60% of the WIP incurred per annum (20% per quarter). Bill up to 75% or the WIP incurred per annum (25% per quarter).

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

THE NEW TEST OF PROPORTIONALITY – 66% REDUCTION!

Andrew McAulay1 Comment

 

The recent case of Rezek-Clarke -v- Moorfields Eye Hospital is another example of how the new test of proportionality is being applied and the impact it is having on the receiving parties’ claims for costs.

This case related to a low value medical negligence claim.  The Claimant instructed his solicitors on 31 July 2013 and letters of claim were sent to the proposed Defendants on 20 June 2014. The Defendant admitted liability on 14 November 2014, but denied causation.  Proceedings were issued against the Defendant on 1 October 2014 (mainly due to impending limitation issues).

The claim, at best, was worth £5,000.00 and was compromised on 8 July 2015 for £3,250.00.

On 29 October 2015, the Claimant’s solicitors commenced Detailed Assessment Proceedings.  The bill of costs for detailed assessment totalled £72,320.85.  The matter proceeded to a Provisional Assessment before Master Simons on 21 July 2016, where he assessed the bill and reduced this to £24,604.40. On 24 August 2016, the Claimant requested an oral hearing in relation to the provisional assessment and that oral assessment took place on 10 January 2017.

The judgment dealt solely with the issues of proportionality and the ATE insurance premium. The Master did make some increases (to other items within the bill of costs) to what he originally allowed on Provisional Assessment, however, these other items/issues that were heard at the oral hearing did not form part of the judgment.

The key points which arose from the judgment are as follows:

Proportionality

At paragraph 19 the Master referred to the well-known case of Jefferson -v- National Freight Carriers Plc [2001] EWCA Civ 2082 where HHJ Bolton said the following:

“In modern litigation, with the emphasis on proportionality, it is necessary for parties to make an assessment at the outset of the likely value of the claim and its importance and complexity, and then to plan in advance the necessary work, the appropriate level of person to carry out the work, the overall time which will be necessary and appropriate to spend on the various stages in bringing the action to trial, and the likely overall cost. While it is not unusual for costs to exceed the amount in issue, it is, in the context of modern litigation such as the present case, one reason for seeking to kerb the amount of work done, and the cost by reference to the need for proportionality”.

Master Simons, in his judgment, seemed to be critical of the Claimant’s solicitors inability to be able to produce any evidence to support any case planning or consideration regarding the appropriate costs to be incurred (taking into account the fact that the claim was always going to be of a low value).  Looking at this point from a practical perspective, it seems logical for any Claimant solicitor, as a matter of course, to produce a case plan from the outset of a case together with a skeleton costs budget.  Documentation (evidence) of this nature could prove invaluable when trying to demonstrate to a Master or Costs Judge that case planning and consideration did take place. In the absence of such evidence the receiving party could be left in a more vulnerable position, particularly in low value claims where costs are globally disproportionate.

Furthermore, Master Simons ruled that the new test for proportionality does apply to liabilities incurred post 1 April 2013. In this case the ATE insurance premium was one which is still allowed under the Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (No. 2) Regulations 2013). This contradicts the decisions of Master Rowley in King v Basildon and of Master Brown in Murrells v Cambridge University. However, it is consistent with the decision of Master Saker in BNM v MGN.

What is abundantly clear is there is disagreement at the Senior Court Costs Office as to the application of the new test of proportionality in relation to post 1 April 2013 additional liabilities and clarity is required to ensure that any confusion is avoided.

ATE Insurance Premium

The ATE premium totalled £31,976.49. On Provisional Assessment, the Master reduced the premium to £2,120.00 (a reduction of circa. 93%).  This was reduced on the basis of proportionality.

The Claimant’s solicitors made the usual submissions in relation to ATE premiums and relied on the well-known case of Rogers v Merthyr Tydfil County Borough Council. However, Master Simons ruled that the case was distinguishable from ‘Rogers’ as ‘Rogers’ was decided pre-LASPO.  Paragraph 64 of the Judgment is useful to read in relation to this point, but essentially it explains that the test of proportionality was fundamentally different when the ‘Rogers’ case was decided. In ‘Rogers’ the Court concluded that if it was necessary to incur an ATE insurance premium, then it should be adjudged a proportionate expense.  However, now proportionality trumps necessity.  No doubt the ATE insurance market had some tears in their eyes when they read this paragraph of the judgment as it will no doubt cause challenges to those ATE insurance premiums which remain in the system.

Another interesting point made was at paragraph 67 of the judgment where the Master made a comment in relation to the calculation of an ATE insurance premium:

“……As the premium is deferred, surely the basis of calculation should be on the reasonable amount of the fees for the medical reports, not the actual cost…….”.

The Master therefore felt that the premium should be calculated taking into account the amount allowed on assessment and not the claimed amount.  I suspect such an approach would receive some real opposition from the ATE insurance market, as ATE insurers pay the claimed amount to experts if the claim fails.

Another interesting point is made further on in paragraph 67:

“……Furthermore, it is often the case that the fee claimed for a medical report includes the fee charged by a medical agency.  I query whether any attempt is made by solicitors or the insurers when calculating the premium, to distinguish between the actual cost of the report and the fee paid to the medical agency……”.

Clearly, for those acting for paying parties, there are some useful questions and points to raise in relation to post 1 April 2013 ATE insurance premiums following this judgment.

Preparation of the bill of costs

A separate point raised in the submissions regarding the ATE insurance premium was the calculation of the premium and in turn, the preparation of the bill of costs.  This was quite a serious point and demonstrates the importance of preparing accurate bills of costs for detailed assessment.  The premium was claimed at £31,976.49, but during the oral detailed assessment hearing, the receiving party explained that the premium had been calculated incorrectly, and that the correct amount was £22,255.23.  However, the Claimant could not provide an explanation regarding why there had been an error in the calculation and (more importantly), why the bill of costs had been certified as accurate and true when it contained such a substantial error (the error being £9,721.26).

This did seem to trouble the Master and paragraphs 61, 62 and 63 are useful to read in this regard.  The Master raised concerns regarding the lack of evidence that had been provided to support the correct level of the premium. The methodology in calculating the premium at £22,225.23 was based on witness evidence. The only evidence in front of the Master was a Schedule of Insurance which showed a premium of £30,916.50, and therefore the failure to include the correct (or evidence the correct) premium in the bill of costs caused some real prejudice to the Claimant.  At paragraph 63, Master Simons stated that he would have been justified in disallowing the premium in full.

This demonstrates the importance of preparing accurate bills of costs and ensuring that each item is correct before a bill is signed and detailed assessment proceedings are commenced. The premium was claimed incorrectly and even when the error was identified the Claimant failed to explain how the new and correct figure was calculated. This failure could not have helped the Claimant in their submissions that the premium was proportionate or support their arguments that the drastic reduction at provisional assessment was incorrect.

Summary

The real headline point that can be taken from this case is how the courts are approaching the application of the new test of proportionality to additional liabilities. This case further adds to the current confusion as to how the new test of proportionality is to be applied in relation to post 1 April 2013 additional liabilities.  Hopefully, by the end of the year we should have clarity as the Court of Appeal is due to look at the matter at some point in October.  Until then, we should all expect a mixed bag of outcomes (or adjournments) on detailed assessment from the different Masters and Costs Judges all around the country!

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 on 0113 336 3334 or at andrew.mcaulay@clarionsolicitors.com.

 

Third Party Funding – Regulation or Not?

Andrew McAulayLeave a comment

John Hyde of the Law Society Gazette recently gave a useful update on the issue of statutory regulation in relation to third party litigation funding. You can access his short article by following this link.

I personally think that this is a very interesting topic/debate. As I understand the position, the government is wary of imposing statutory regulation at this moment in time as it is concerned that it could stifle the funders who are currently in the litigation funding marketplace and deter any new entrants. In light of the substantial funding changes post LASPO, it is important not to make any changes which could impact on access to justice. There is currently a voluntary code of conduct in place and optional membership of the Association of Litigation Funders (http://associationoflitigationfunders.com/), but is this enough?

Third party funders can earn substantial amounts from successful cases and therefore surely some form of regulation should be introduced to ensure that both individual and corporate purchasers of third party funding are protected.

What are your thoughts in relation to this topic? Would you regulate the area now or would you give the area time to develop and then look to regulate in due course? My view is the latter.

I await your comments with interest.

 

This blog was prepared by Andrew McAulay is who a Partner and the Head of the Costs and Litigation Funding Team at Clarion. Andrew can be contacted on 0113 336 3334 or at andrew.mcaulay@clarionsolicitors.com

Proportionality – a common sense decision from Master Rowley

Andrew McAulay1 Comment

In the case of BNM v MGN Limited [2016] EWHC B13 (costs) the Senior Costs Judge applied the new test of proportionality to post Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) additional liabilities. The claim was for defamation and therefore the additional liabilities (despite being incurred post 1 April 2013) were recoverable inter partes (additional liabilities for defamation and mesothelioma cases remain recoverable inter partes post LASPO).

In BNM the Senior Costs Judge based his decision on the fact that pursuant to CPR 44.3(7) the old test of proportionality was not preserved for additional liabilities incurred post 1 April 2013. The key paragraphs from BNM on this point are as follows:

28 – It seems to me that the intention was that the rules as to the recoverability of additional liabilities would be preserved in relation to those additional liabilities which remain recoverable after 1 April 2013. However, the old test of proportionality was not preserved in relation to those additional liabilities. Had that been intended it could have been achieved quite easily by a further exception in CPR 44.3(7).

31 – A consequence of the reduction of the base costs to a proportionate figure will be that the success fee, a percentage of those base costs, also reduces. It would be absurd and unworkable to apply the new test of proportionality to the base costs, but the old test of proportionality to the success fee.

32 – Ring fencing and excluding additional liabilities from the new test of proportionality would be a significant hindrance on the court’s ability to comply with its obligation under CPR 44.3(2)(a) to allow only those costs which are proportionate.

In the case of King v Basildon & Thurrock University Hospitals NHS Foundation Trust [2016] EWHC B32 (Costs) Master Rowley reached a difference conclusion, albeit the additional liabilities in this care were incurred pre 1 April 2013 i.e. pre LASPO. Master Rowley’s decision was primarily based on the definition of costs in the CPR post 1 April 2013. The useful paragraphs of Master Rowley’s judgment to consider are as follows:

23 – The key phrase in the new proportionality test in 44.3 (5) states that “costs incurred are proportionate if they bear a reasonable relationship to ….”. The word “costs” as now defined refers to profit costs and disbursements but does not include additional liabilities. Given that the proportionality test in 44.3 (5) only applies to work carried out since that definition of costs has come into being, the obvious interpretation is that it only relates to the base costs of a CFA. It is not clear to me why additional liabilities should necessarily be caught by a test which is based on a definition recast specifically to exclude such liabilities.

24 – In my view, treating the word “costs” as only referring to base costs fits in with the provisions of Part 3 in relation to costs budgeting which were also brought into the CPR in April 2013. For example, in rule 3.15 the court “may manage costs to be incurred by any party in any proceedings” and in doing so will make a costs management order. Such an order will record the extent to which budgets are agreed between the parties and, to the extent they are not agreed, will record the court’s approval after making appropriate revisions. “The court will thereafter control the parties’ budgets in respect of recoverable costs”. Precedent H, which sets out the costs to be managed, expressly excludes any additional liabilities that may still be recoverable between the parties. Consequently, the only interpretation of the recoverable costs which the costs management order is controlling, is that they are the base costs of a CFA as set out in the Precedent H. The court is required to set a budget which is specifically described as allowing reasonable and proportionate costs notwithstanding that it excludes additional liabilities.

25 – In my judgment, being consistent with the costs management arrangements and avoiding bizarre outcomes in bills which involve both proportionality tests, point towards the rules being interpreted as continuing to require the court to assess the base costs and additional liabilities separately.

 26 – Furthermore, the purpose of the Jackson reforms in initiating a sea change could have resulted in Parliament disallowing the recoverability of success fee and ATE premiums from 1 April 2013. But it did not do so and has allowed for the run-off of recoverable success fees and premiums in the main and the continued recoverability of success fees or premiums in particular instances. It seems to me that the fact that additional liabilities are still allowed for by the provisions of CPR rule 48.1 simply means that they remain in existence. It does not mean that they have to be assessed in the aggregate with the base fees using a test which has no recognition of additional liabilities. This is particularly so when aggregation will render those additional liabilities effectively irrecoverable in practice”.

The approach of Master Rowley has recently been followed by Master Brown in the case of Murrells, Estate of v Cambridge University NHS Foundation Trust [2017] EWHC B2 (Costs).

The following are useful extracts from the Judgment:

33(7) – …It seems likely that they will have entered into such arrangements in the reasonable expectation that the additional liabilities would continue to be recoverable as they were pre-LASPO. To apply the new test to additional liabilities in the way contended for would, however, require many litigants to submit to a substantial, if not complete, disallowance of their additional liabilities as against the other party or parties to the litigation, while at the same time the liability to pay an insurer or the lawyers the additional liability would be preserved. If that were right, it would inevitably lead to many litigants, including – it might be observed – victims of mesothelioma, having to give up deserving claims or defences. I agree with Master Rowley: in these circumstances, the defendant’s contention cannot be reconciled with transitional provisions and the clear will of Parliament. The intention must have been to provide, at the very least, an orderly retreat from the old funding scheme.

34 – In the circumstances, I respectfully disagree with the decision of Master Gordon-Saker in BNM as to the application of the new proportionality test to additional liabilities and therefore also as to the need to aggregate base costs with additional liabilities.

The case of BNM is currently on its way to the Court of Appeal, with a hearing date expected for October 2017. Hopefully, this will bring some clarity to the position, but until then expect lots of costs litigation over the point. Hopefully, the Court of Appeal will not simply address the additional liabilities in BNM, but also address the position of pre-LASPO additional liabilities in the context of the King case.

Personally, I think the position adopted by the Senior Costs Judge represents a drafting error in relation to CPR 44.3(7). The intention of LASPO in my view was very clear:

  1. Additional liability incepted pre 1 April 2013 = recoverable inter partes and not subject to the new test of proportionality
  2. Additional liability incepted post 1 April 2013 = not recoverable inter partes
  3. Additional liability (defamation and mesothelioma cases) incepted post 1 April 2013 = recoverable inter partes and not subject to new test of proportionality

Surely, it was never the intention for additional liabilities at 1 and 3 above to be recoverable only for them to be crippled by the new test of proportionality (resulting in a non-recovery)?  Surely, it was never the intention to specifically ‘carve out’ defamation and mesothelioma claims only for the additional liabilities to then be squashed on detailed assessment due to the new test of proportionality? This is particularly relevant in defamation cases where costs can easily dwarf damages.

What all this does show is the problems that can be caused when even minor changes are made to the CPR. I say this in the context of a significant extension of fixed costs on the horizon. There are fixed costs disputes every day at the moment in relation to portal cases and fast track injury cases where the numbers in dispute are very small. Where the numbers in dispute are large i.e. in multi-track fixed costs cases then this will undoubtedly cause satellite litigation, for example arguments about location, what stage the case settled and disbursements.

LJ Jackson thinks that fixed costs will bring certainly, but if Defendants (paying parties) are prepared to exploit a ‘gap in the rules’ as highlighted in the BNM case then expect Costs War 2 post implementation of fixed fees! The Courts are going to be busier than ever, which would be contrary to what LJ Jackson and the governments wants.

LJ Jackson maybe about to score an ‘own goal’ with his planned extension of fixed fees……

This Blog was prepared by Andrew McAulay, who is a Partner and the Head of the Costs and Litigation Funding Team at Clarion. He can be contacted on andrew.mcaulay@clarionsolicitors.com or on 0113 336 3334.

The 70% Costs Myth…..

Andrew McAulayLeave a comment

Throughout the legal profession there is a ‘myth’ that a Receiving Party should expect to recover in the region of 70% of their costs on detailed assessment. Many lawyers advise their clients of this. In some instances this may be a reasonable estimate, but in my experience the figure is often arrived at without any consideration of the costs contained within the bill of costs.

The bill of costs is the absolute starting point in relation to the likely outcome on detailed assessment. If the hourly rates claimed in a bill of costs are in accordance with the SCCO Guideline Hourly Rates, the costs claimed are clearly proportionate and the time claimed is generally reasonable then one would expect any reductions on detailed assessment to be minimal. The recovery should therefore be way in excess of 70%.

However if, for example, the following issues relate to a bill of costs then one could expect the recovery to be much less than 70%:

1. the hourly rates are significantly above the SCCO Guideline Hourly Rates

2. the claim for costs is globally disproportionate

3. there is lots of duplication and solicitor/own client communications claimed

4. There has been a lack of delegation.

We recently prepared Points of Dispute (acting for the Paying Party) on a matter and following Provisional Assessment the bill of costs was reduced by 50%. This was mainly due to proportionality and VAT being incorrectly claimed.

When considering a claim for costs, lawyers should pay attention to the costs contained within the bill of costs when estimating the likely level of recovery. The 70% ‘myth’ should not be the starting point. Advising a client that 70% is the ‘norm’ could actually mean the client is paying more or receiving less than they should be. My advice is therefore to proceed with caution and shy away from relying on the 70% ‘costs myth’. This is now more important than ever in light of the new test for proportionality and the impact that this can have on summary or detailed assessment (Who Needs Fixed Costs and Proportionality continues to get tougher).

This blog was written by Andrew McAulay, who is a Partner at Clarion. He is the Head of the Costs and Litigation Funding team and can be contacted on 0113 336 3334 and andrew.mcaulay@clarionsolicitors.com

Costs Budgeting is essential”, hails LJ Jackson.

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“Costs Budgeting is essential”, hails LJ Jackson.

Jackson told a London Common Law and Commercial Bar Association event last night that:

“Costs budgeting is an essential element of any programme to make the costs of litigation proportionate”, and that:

‘Litigation is a commercial enterprise.’  He added ‘there are no other commercial projects which people enter without a budget” and that “some form of costs management or costs budgeting is essential.’ This echoes comments he made in his 2009 final report.

In Jackson’s final report in 2009 he said “Any measures to control the costs of a project are themselves a source of some expense. Quantity surveyors have to be paid professional fees for their services in monitoring the costs of a construction project and determining what amounts are payable at each stage or what sums are due in respect of variations. But no-one suggests that quantity surveyors should be dispensed with, in order to “save” the costs of employing them. The costs of any multi-track case can be substantial, ranging from tens of thousands of pounds to tens of millions of pounds. In other words, the costs of every multi-track case, unless it settles early, are comparable to at least the costs of a small building project and sometimes they are comparable to the costs of a major building project. There is precisely the same need to control the costs of litigation as there is need to control the costs of any other project”.

After 7 years since his report was written, 1 pilot scheme and the 3 year practical application of the amended Civil Procedure Rules, Jackson’s opinion on both the effect of costs management and the costs of the same, remains constant.  Costs Management works and the costs of the same are a sensible part of the ‘project’.

Please follow this link to the Law Society Gazette’s article.

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

PROPORTIONALITY HITS FAMILY LAW

Andrew McAulay1 Comment

I have previously posted blogs on the topic of proportionality (Who needs fixed costs! and Proportionality continues to get tougher) and made the comment that it would be interesting to see how the area and application of proportionality develops.

Recently we have seen proportionality develop in the area of Family Law.  In the case of Kay v Kay [2016] EWHC 2002 (Fam) the successful party’s claim for costs was reduced on Summary Assessment from £33,813.00 to £3,737.50.  This was a reduction of approximately 89%.

The Summary Assessment was carried out by Mr Justice Macdonald and he felt that the claim for costs was unreasonable and excessive taking into account the circumstances of the case.  He said the following; “it is remarkable that such a significant sum of money has been spent by these two parents arguing over a single question the answer to which was indisputable from the outset.  The costs incurred in this case were disproportionate to the single issue at hand”.

During the Summary Assessment the Judge reduced items heavily such as hourly rates, attendances upon the client and work done on documents. Interestingly, no schedule (breakdown of time) was attached to the Statement of Costs in relation to the documents work. This no doubt contributed to the significant costs reduction.

The Judge conducted the Summary Assessment by assessing the claims within the statement of costs on a summary basis, which brought the figure of £3,737.50.  What he did not appear to do was assess the costs and then stand back and reduce the costs to what he thought was a proportionate amount.  Clearly, in this case the Judge must have felt comfortable with the ‘end’ amount or when he conducted the summary assessment he applied the tests of reasonableness and proportionality at the same time.  In the cases of Who needs fixed costs! and Proportionality continues to get tougher (both detailed assessments and not summary assessments) both Judges determined what was reasonable and then ‘sat back’ and reduced the claims for costs to what they deemed were proportionate amounts. This is the approach that LJ Jackson set out in his final report at Part 1, chapter 3, paragraph 5.13:

In other words, I propose that in an assessment of costs on the standard basis, proportionality should prevail over reasonableness and the proportionality test should be applied on a global basis. The court should first make an assessment of reasonable costs, having regard to the individual items in the bill, the time reasonably spent on those items and the other factors listed in CPR rule 44.5(3). The court should then stand back and consider whether the total figure is proportionate. If the total figure is not proportionate, the court should make an appropriate reduction. There is already a precedent for this approach in relation to the assessment of legal aid costs in criminal proceedings: see R v Supreme Court Taxing Office ex p John Singh and Co [1997] 1 Costs LR 49.

The case demonstrates that the new test of proportionality is not just limited to the areas of Civil and Commercial Litigation, but equally applies to the area of Family Law.  Effectively, regardless of the area of law, where legal costs are to be assessed pursuant to CPR 44.3(2) then the new test of proportionality (the ‘Jackson’ test) applies.

Finally, this is another example of the Courts tackling disproportionate legal costs and demonstrates that the Court has the tools already to deal with disproportionate claims for costs and that fixed costs are not required.

This blog was prepared by Andrew McAulay who is a Partner at Clarion and the Head of the Costs and Litigation Funding department.   Andrew can be contacted at andrew.mcaulay@clarionsolicitors.com or on 0113 336 3334.

 

Revocation of the financial Deputy’s responsibility in a case concerning deprivation of liberty and care arrangements- is this fair?

Stephanie KayeLeave a comment

Temperley Taylor are considering appealing a Court of Protection ruling that revoked the financial Deputy’s responsibility to act on behalf of the Protected Party in a case concerning deprivation of liberty and care arrangements.

In Mrs P v Rochdale Borough Council and NHS North, Central and South Manchester Clinical Commissioning Groups [2016] EWCOP B1, District Judge Ranj Matharu made a judgment stating that the firm was not acting in the Protected Party’s best interests and criticised the “brutal and insensitive” comments made in relation to the Protected Party’s requests.

The background of the case was explained to the court and the court was informed that the Protected Party lacked capacity to make decisions regarding where she resided. Despite her care being fully funded by the local Clinical Commissioning group, the Protected Party had a number of underlying ‘challenging behaviours’  throughout her time in care. The Protected Party had a substantial level of money and therefore it was found that her standard and quality living arrangements could be improved by using those funds.

An application had been made for the Managing Partner of Temperley Taylor to be appointed as Deputy in respect of the Protected Party’s financial and property affairs, an Order was made in March of this year as she had been a “long standing client and the firm held her will”.

A number of requests were made with regards to the reappraisal of the Protected Party’s needs and funds were requested to improve her diet and purchase new clothes. She had made it clear that she had specific dietary requirements and her only enjoyment in life came from the company of her dog, who had been re-homed. “Being in the presence of other dogs made her “face light up” and it was evidential that this improved the quality of life.” The court found that these factors were not addressed following a number of assessments of her care plan.

DJ Matharu highlighted his suspicion and curiosity in relation to the Protected Party’s finances. The Protected Party’s account held a nil balance, when a year previously it was recorded that she had £7,000.00, yet there was little evidence that these funds were provided to purchase more varied food and clothing. DJ Matharu further said that this financial information was “troubling” and an understatement if that.”

‘The delay in establishing Mrs P’s financial position is inexplicable,’ the judgment stated. ‘In fact, it is entirely unclear on what basis they consider the steps they have taken to be in her interests. Their sole focus should and can only be Mrs P, yet they appear to be working against the litigation friend and not with them.’

Temperley Taylor highlighted their opinion in an email to Switalskis that it “would seem irresponsible in the extreme to suggest that a dogs visits a care home for elderly and frail people”.

Thereafter the Order was revoked, as the Court was satisfied that Temperley Taylor were not acting in the Protected Party’s best interests.

The firm has stated that they are “actively considering an appeal against the judgment.”

If you have any queries or general questions, please do not hesitate to get in touch and we would be more than happy to assist you. Please contact CopCosts@clarionsolicitors.com or call 0113 246 0622.

Professional Deputy Costs Guidance

Stephanie KayeLeave a comment

You should all now be aware that the Office of the Public Guardian and the SCCO have issued some guidance in respect of Professional Deputy Costs. In summary, here’s what you need to know:

  1. The SCCO Guideline Hourly rates will be allowed, except in exceptional circumstances
  2. Routine tasks such as arranging payments or checking bank statements should be delegated to a Grade D fee earner at best. There are also times when use of a non-fee earner would be considered appropriate
  3. Three minutes will generally be allowed for arranging payments of any kind
  4. One home visit per annum is appropriate, but more may be acceptable dependent on the needs of the case. Excessive contact with all parties should be limited
  5. Work in respect of welfare is not recoverable, without permission from the COP
  6. One senior fee earner will be allowed at investment strategy meetings
  7. File notes must be present to evidence the work carried out
  8. Office overheads ie. Research, perusing incoming correspondences, internal communications and supervision are not recoverable
  9. Three minutes will be allowed for short, routine correspondences
  10. Litigation costs should be appropriately claimed within the litigation proceedings
  11. Grade D rates will be allowed for the preparation of the bill of costs
  12. In hardship cases (net assets below £16,000.00), professional costs must be limited to 4.5% of the Protected Party’s estate per annum
  13. On the client’s death, professional costs should be agreed with the executor of the estate
  14. The OPG105 must be submitted to the SCCO with the bill of costs
  15. Bills of costs should be prepared and submitted on an annual basis

For further information, please go to the following link:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/538901/19_07_16_Professional_deputy_costs__FINAL.pdf

If you have any queries, please do not hesitate to get in touch and we would be more than happy to assist you. Please contact CopCosts@clarionsolicitors.com or call 0113 246 0622.