Tag: Clarion Costs Team

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 August, and the Admin Team are working on returning bills that have been assessed, and are currently up to those in the 4th week of April.

With regards to e-filing, new filings submitted in the 4th week of March are currently being dealt with.

Notice-to-COP-Customers-02.05.2023Download

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

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

Reductions to COP assessments and what you need to know about them

Casey McGregorLeave a comment

At Clarion, we prepare over 2500 Court of Protection bills of costs per year to be assessed by the Senior Court Costs Office. We also review the bills once they have been assessed and monitor the common reductions. Based on our experience, we have identified the 5 most common reductions and the reasoning behind the same. The below 5 reductions are in line with published case law and are therefore not likely to be allowed if a re-assessment is requested.

Arranging payments

You may notice that arranging payments are reduced throughout the bill of costs. This is in line with the Case of Jamie Walker (2002) whereby Master O’Hare defined checking the file to ensure an invoice has not already been paid, checking sufficient funds are in the account and writing a cheque and getting it signed as non-fee earner work. Arranging payments and considering invoices are typically reduced to 3 minutes within the bill of costs at Grade D rates in line with this. We therefore suggest payments and considering invoices are delegated to a Grade D fee earner. This is something that the Professional Deputies Forum would like to challenge in the future, as significant payments require consideration and often approval above Grade D rates. We hope that this case law will be reconsidered in the future.

Enclosure letters

Where you may have sent a letter enclosing payment of an invoice or an email confirming settlement of an invoice, this will be classed as an ‘enclosure letter’. In line with the case of Leighanne Radcliffe (2004), letters were reduced from the standard rate of 6 minutes to 3 minutes within the bill of costs. We therefore recommend that enclosure letters are delegated to a junior fee earner and the time is limited where possible to prevent overbilling.

Two fee earners at an attendance

If you have claimed two fee earners in attendance, in our experience, it will only be allowed in exceptional circumstances. Typically, the second fee earner’s time is struck out or reduced. In the case of Garylee Grimsley (1998) and further to R v LegalAid Board Ex Parte Bruce (1991), two fee earners at an attendance were reduced as it was deemed to be duplicative work. It stated, “in so far as expense is involved in adding to this stock in trade, it is an overhead expense and not something that can be charged to the client”. Therefore, we recommend that two fee earners should only be claimed at an attendance whereby it is necessary and reasonable to do so, as there is a higher cost to the Protected Party. Cases where two fee earners may be considered reasonable are where there is a significant safety risk or the second fee earner has different expertise, but this time is still subject to assessment and it’s important that the reasoning is clear within your file notes to justify the attendance of both fee earners.

High level of contact with the Protected Party

You may see a reduction occur whereby there is a high level of contact with the Protected Party, as it is seen to be the Deputy’s duty to keep the costs at a minimum for the Protected Party. Excessive contact would lead to a higher level of costs, which is not in the best interests of the Protected Party. A reduction could occur in line with the case of Trudy Samler (2001). This case raises the question of whether the contact was instigated by the Protected Party and whether the Deputy should be paid for such contact. Excessive contact with the Protected Party could therefore be reduced due to this case and we recommend that Deputy’s keep an eye on this. We recommend that Deputies try and manage the levels of contact with any party and involve other professionals to support the Protected Party or their family in order to manage costs.

Record keeping

Work in relation to updating the Protected Party’s financial records is typically reduced by the Costs Officers on assessment. In the case of Philpott (2015- unwritten), Master Haworth stated “It seems to me that the inputting of data into P’s ledger is not fee earning work. At most it is bookkeeping which, to my mind, is an overhead of a solicitor’s practice. This work has to be distinguished from for example, reviewing or perusing the data to come to a decision as to what then needs to be done with a P’s funds. To my mind that may well amount to fee earning work for which the solicitors can charge separately at the appropriate rate.” Therefore, we recommend that the work is distinguished in this way in order to avoid the reduction on assessment and the word ‘updating’ should also be avoided.

We are happy to review the assessed bills and provide advice to any professional Deputy who is not happy with the outcome of their assessment. Please contact Casey for more information at casey.mcgregor@clarionsolicitors.com

Manchester University Hospitals NHS Foundation Trust and JS and Manchester City Council [2023]

Leah MorrisLeave a comment

This case concerns a 17 year old who had been detained under s2 of the Mental Health Act but was deprived of her liberty when that authority lapsed.

Background of P

By way of background, P has a diagnosis of Autistic Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD), learning disability and an attachment disorder. Due to P’s complex mental health needs, this meant that she was in danger by her own hand as well as at the hands of others.

Overview

P had been admitted to a specialist child and adolescent psychiatric unit as an ‘informal patient’, meaning she had been assessed as having capacity to consent to admission. P was discharged to the care of her mother over concerns she could become institutionalised. Following this, P ran away from home and into traffic. She was detained by the police who were so concerned about her mental health that they used their powers under s136 of the Mental Health Act to detain her and take her to a place of safety.

It was here that a Mental Health Act assessment was carried out and P was assessed as not requiring admission. P was therefore discharged back into her mother’s care with a community based care and treatment plan.

Several days later, P was detained under s2 of the Mental Health Act following an overdose. After recovery, she remained on the ward even after authority to detain expired. It was agreed that being on the ward was inappropriate and detrimental to her health.

P’s Care and Treatment in Hospital

Due to P’s attempts to self-harm, the hospital put in place a ‘Care Plan of Restrictions’. Incidents were recorded by the hospital and HHJ Burrows considered these when providing the judgment.

Court of Protection Application

From the date that the s2 expired, P was not subject to any lawful regime of detention. P was subject to a regime of detention due to the fact that she was under continuous supervision and control and was not free to leave the ward, in light of the ‘Care Plan of Restrictions’ that were imposed. HHJ Burrows accepted that during that time, P lacked the capacity to make decisions in regard to her care and treatment due to her mental health conditions. Because of this, P was therefore not able to consent to her residence, care, treatment or to being deprived of her liberty.

On 10 February 2023, the hospital made an application to the Court of Protection seeking several declarations in relation to P remaining at the hospital in her best interests and to be subject to the restrictions contained in the care plan.

Judgment

HHJ Burrows declared that once the s2 authority had expired, P had been unlawfully deprived of her liberty. HHJ Burrows considered P’s capacity and the capacity assessment conducted in order to assist with the judgment.

Conclusion

It was concluded that P was ineligible to be deprived of her liberty in the hospital under the Mental Capacity Act. She was within the scope of the Mental Health Act under Case E. HHJ Burrows concluded that for the reasons given, P could have been detained and treated under the Mental Health Act.

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

Analysis of the Proposed Implementation of the Extended Fixed Recoverable Costs (FRC) Regime

Joanne ChaseLeave a comment

Introduction

Fixed costs are costs that are awarded to a party in a civil case, regardless of the amount of work that their legal representatives have done. At present this applies to many cases with damages worth up to £25,000, with several exceptions.

The Civil Procedure Rules Committee has confirmed that from 1 October 2023, fixed recoverable costs (FRC) will be extended to cover cases with under £100,000 damages that are not particularly complex. The fast track will remain with several changes, and a new intermediate track will be created for matters worth £25,000 to £100,000.

The extension to FRC is the government’s response to Sir Rupert Jackson’s 2017 report which set how fixed costs could apply to higher-value claims.

There are several key issues to consider in relation to the extension of FRC in light of the draft rules published on 20 April 2023. These rules are still in draft form, and it is possible that some of the potential issues raised will be addressed before the rules come into force.

When will the new rules apply?

The new FRC will apply to all cases issued on or after 1 October 2023, save for personal injury and housing claims.

The new FRC will apply to personal injury claims where the cause of action accrues on or after 1 October 2023; and will only apply to disease claims where the letter of claim has not been sent to the defendant before 1 October 2023.

HMCTS court forms will be amended as appropriate for implementation in October 2023.

Exclusions

Proposals on introducing FRC for clinical negligence cases up to £25,000 are being taken forward separately by the Department of Health and Social Care (DHSC) and are not being introduced as part of this package of reforms.

It has been decided to delay the application of FRC for housing claims for two years.

Cases that are allocated to the small claims track will continue to be governed by the small claims track rules.

Rule 26.9(10) confirms that the following case types will be allocated to the multi-track rather than the new intermediate track, and will thereby be excluded from FRC:

  • A mesothelioma claim or asbestos lung disease claim.
  • One which includes a claim for clinical negligence, unless both breach of duty and causation have been admitted.
  • A claim for damages in relation to harm, abuse or neglect of or by children or vulnerable adults.
  • A claim that the court could order to be tried by jury if satisfied there is in issue a matter set out in section 66(3) of the County Courts Act 1984 or section 69(1) of the Senior Courts Act 1981.
  • Claims against the police involving an intentional or reckless tort, or relief or remedy in relation to the Human Rights Act 1998. This exclusion does not apply to a road accident claim arising from negligent police driving, an employer’s liability claim, or any claim for an accidental fall on police premises.

It is worth noting that the new rules will not apply to cases allocated to the fast track or the intermediate track, when the court orders otherwise. Judges will retain the discretion to reallocate more complex cases valued at under £100,000 to the multi-track, so that complex cases will not be inappropriately captured by the extended FRC regime.

Changes to the CPR Provisions

In drafting the new rules, a generic approach has been taken so far as possible such that all categories of case are covered by the same rules. An exception to this is noise induced hearing loss (NIHL) claims, the rules for which are included in section VIII of Part 45.

There have been substantial changes to Part 45 (Fixed Costs), which has been largely re-written. A new Practice Direction for Part 45 sets out the relevant tables of fixed costs.

Changes have also been made to Part 26 (Case Management – Preliminary Stage) and PD 26, as well as Part 28 (The Fast Track and Intermediate Track) and PD 28. Changes have also been made to Part 36 (Offers to Settle).

Consequential changes have been made to other Parts.

Complexity Banding

New bands of complexity will come into force on 1 October 2023. The court will allocate a case to a complexity band based on the factors set out in CPR 26.12-26.14.

The complexity bands provide an ascending scale of allowable costs commensurate with the complexity of the claim. These bands can be summarised as:

Band 1: Cases that are relatively straightforward and can be dealt with quickly and efficiently.

Band 2: Cases that are more complex and will require more time and resources to resolve.

Band 3: Cases that are very complex and will require a significant amount of time and resources to resolve.

Band 4: Cases that are exceptional in their complexity and will require a very significant amount of time and resources to resolve.

The actual tables with specific examples are reproduced at the end of this article.

Part 45

The proposed changes to CPR 45 are substantial.

The new FRC fees in the fast track and the intermediate track are confirmed in 45.44 and 45.50, which are reproduced partially below.

CPR 45.44For so long as the claim is allocated neither to the small claims track, the intermediate track or the multi-track, the only costs allowed in any claim which would normally be or is allocated to the fast track are—

(a) the fixed costs in Table 12; and

(b) the disbursements as set out in Section IX of this Part.

45.50(1) For as long as the case is not allocated to the multi-track, the only costs allowed in any claim which would normally be or is allocated to the intermediate track are—

(a) the fixed costs in Table 14; and

(b) the disbursements as set out in Section IX of this Part.

…

The proposed new FRC fees are set out in tables 12 and 14 of PD 45.

Progression through the FRC stages is unchanged from the existing fast track FRC:

  • Pre-issue.
  • Post-issue but pre-allocation.
  • Post-allocation but pre-listing.
  • Listed for trial.

Section IX of Part 45 consists of rules 45.57–45.62 and details the disbursements that will be recoverable in various scenarios.

The Table of HMRC Fixed Commencement Costs, which were previously located in Table 7 of Part 45, has been simplified. The new Table is found at Table 11 in Part 45.

CPR 45.1 confirms that the court will have more flexibility to vary the fixed costs that are awarded in each case. This will help to ensure that the fixed costs regime is fair and proportionate in each case. For example, the court may vary the fixed costs if there are exceptional circumstances, such as the complexity of the case or the resources of the parties.

The court will be able to award fixed costs more quickly and efficiently, for example, at the end of a trial.

It is worth noting that the figures for FRC costs (which had previously been fixed at July 2016) have been uprated for inflation using the January 2023 Services Producer Price Index. The figures have been rounded so that the extended FRC regime starts off with a clearer set of figures. This is a positive development for claimants, as it was not expected that the rates would be uprated.

Part 36

The proposed changes to CPR 36 are designed to make Part 36 offers more attractive to parties and to encourage more settlements before trial:

Increased financial incentives: the amount of costs that a party can recover if they accept a Part 36 offer will be increased. Under the current rules, a party can recover their costs up to the amount of their Part 36 offer, plus 10%. The proposed changes to CPR 36 include a new 35% additional amount to be awarded where the claimant obtains judgment against the defendant which is at least as advantageous to the claimant as the proposals contained in their Part 36 offer. This means that if a claimant makes a Part 36 offer and the defendant does not accept it, and the claimant then goes on to win the case at trial, they will be entitled to recover their costs from the defendant, plus an additional 35%. The purpose of this new 35% additional amount is therefore to encourage defendants to accept Part 36 offers.

Reduced time limits: the time limits for making and accepting Part 36 offers will be reduced. Under the current rules, a party must make a Part 36 offer at least 21 days before the trial date. Under the proposed rules, a party will have to make a Part 36 offer at least 14 days before the trial date.

Improved flexibility: the court will have more flexibility to vary the terms of a Part 36 offer. Under the current rules, the court can only vary the terms of a Part 36 offer if it is satisfied that it is in the interests of justice to do so. Under the proposed rules, the court will be able to vary the terms of a Part 36 offer if it is satisfied that it is just and equitable to do so.

Mass issuing of non-PI cases

One potential issue with the extension of FRC is that it could lead to a mass issuing of non-personal injury (non-PI) cases prior to October 2023 in order to avoid the fixed costs regime. This is because non-PI cases are generally more expensive to litigate than PI cases, and the fixed costs regime could make them uneconomical for claimants to pursue.

This could lead to a situation where claimants are discouraged from bringing legitimate claims, simply because they are afraid of the costs involved. This would be a negative development for the justice system, as it would mean that fewer people would be able to access the courts to seek justice.

Alternatively, a claimant who is considering bringing a claim for damages for breach of contract may decide to issue the claim in the small claims track in order to avoid the fixed costs regime. However, if the claim is found to be outside the scope of the small claims track, the claimant may be ordered to pay the defendant’s costs, which could be significant.

Allocating and Banding Arguments

Another potential issue with the extension of FRC is that the allocating and banding arguments could become more complex and time-consuming. This is because the court will need to consider a number of factors in order to allocate a case to a complexity band, and this could lead to delays in the litigation process.

For example, the court will need to consider the following factors when allocating a case to a complexity band:

  • The nature of the claim
  • The amount of money in dispute
  • The complexity of the legal issues involved
  • The number of parties involved
  • The likely length of the litigation process

This could lead to a situation where the court is required to hold a hearing to determine the complexity band of a case. This could add to the cost and delay of the litigation process.

Unreasonable Behaviour

There is a risk that the new provisions could lead to an increase in unreasonable behaviour.

They could encourage parties to make unreasonable demands in the hope that the other party will settle rather than face the risk of having to pay the additional costs.

They could encourage parties to take unreasonable steps to delay or obstruct the litigation process, in the hope that the other party will give up or make a settlement offer.

They could encourage parties to engage in aggressive or abusive behaviour, in the hope that the other party will be intimidated or discouraged from continuing with the litigation.

However, new CPR 45.13 is intended to deter parties from engaging in unreasonable behaviour during litigation. The court will be able to award additional costs if it finds that a party has acted unreasonably in any of the ways described above. The court will have discretion to award additional costs, and the amount of the additional costs will be determined by the court on a case-by-case basis.

CPR 45.13 will apply to all cases, regardless of the track on which the case is allocated. The provision is intended to encourage parties to act reasonably because of the very real risk of having to pay additional costs if they are found to have acted unreasonably.

Why are the new rules being introduced?

Sir Rupert Jackson’s 2017 report had the following stated aims for the extension of FRC:

Fairness: the new rules are intended to make the costs regime fairer and more transparent. The amount of recoverable costs is based on the complexity of the case, rather than the amount of money in dispute. The new rules require the court to take into account the resources of the parties when making costs orders. This can help to ensure that costs are not awarded in a way that is unfair or disproportionate.

Speed and efficiency: they are also intended to make the litigation process more efficient, which can lead to cost savings for both parties. For example, the new rules encourage parties to engage in early settlement discussions, which can help to avoid the need for a full trial. The parties know in advance how much they will be able to recover in costs, which can help to reduce the need for protracted negotiations and disputes.

Certainty and predictability of costs: FRC provides certainty and predictability of costs for both parties to a litigation. This is because the amount of recoverable costs is fixed in advance, based on the complexity of the case. This can help to reduce the risk of unexpected costs.

It remains to be seen whether these stated aims will be achieved.

It is worth noting that the Law Society does not support the current proposals, either across the existing fast track or to intermediate cases. The Law Society is concerned that the proposals pose a substantial risk to access to justice and that they are based on out-of-date data. They believe that the actual costs of civil litigation must be reduced by streamlining processes before FRCs are extended.

Conclusion

The new rules make a number of changes to the CPR provisions relating to costs. These factors will need to be considered by parties when bringing a claim, and there are several potential issues that could arise as a result of the changes.

It is unknown how effectively the new rules will be implemented in practice, but they will undoubtedly have a significant impact on the way that civil litigation is conducted in England and Wales.

The MoJ propose to review the tables of costs and the extended FRC regime more generally in 3 years’ time. Anything that is particularly egregious should be resolvable by way of case law in the interim. 

Extending FRC is not a panacea for all the problems with the civil litigation system, but it may be a valuable tool for improving the efficiency and fairness of the civil litigation system, at the substantial risk of reducing access to justice.

If you have any queries or concerns regarding these changes, please contact us for a more in depth discussion.

Should you have any questions, you can contact the team at CivilCosts@clarionsolicitors.com

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

Case law surrounding fluctuating capacity – Wrightington, Wigan and Lee Teaching Hospitals NHS Foundation Trust v SM

Tanya ForanLeave a comment

Before Mr Justice Cobb on 18 November 2022, in the Royal Courts of Justice the issue of fluctuating capacity was considered in a case involving a minor (aged 16) and the safe delivery of her unborn baby.

The case involved SM who was a looked after 16-year-old who resided in a supported living complex in Wigan. SM received care from a team of support workers. SM had a history of sexual exploitation and suffered from a complex post-traumatic stress disorder. SM had a history of hospital admissions as a result of her mental health and declined medication on the basis that she feared the medication would cause her mental health to deteriorate further.

SM was deemed as a looked-after child within the definition of section 20 of the Children Act 1989. She was in the advanced stages of pregnancy and had resisted the need for a caesarean operation to be performed to ensure the safe delivery of her baby. Her antenatal care had been good and aside from her mental health the pregnancy had been uncomplicated. However, during the pregnancy she had shown signs of concerns and fear of giving birth. Caesarean section had been attempted on three separate occasions together with an attempt at induction, whereby SM had been unable to go through with the procedure due to fear and anxiety.

The applicant, the NHS Trust sought relief from the Court including a declaration that SM lacked capacity to make decisions regarding her obstetric care and treatment; the Court’s authority to proceed with the proposed plan of a caesarean section operation and to deprive SM of her liberty in order to achieve the safe delivery of the baby.

It was held that SM had capacity to conduct the proceedings and the Official Solicitor declined to act as litigation friend. The Official Solicitor also declined to act as an advocate to the Court. SM instructed a firm of Solicitors to represent her in the proceedings.

Mr Justice Cobb reviewed the evidence before him including various reports and oral evidence from the anaesthetist, obstetrician, psychiatrist and social worker.

Reference was made by Mr Cobb to a previous case of GSTT v SLAM and R (2020) where Hayden J held that “The inviolability of a woman’s body is a facet of her fundamental freedom but so too is her right to take decisions relating to her unborn child based on access, at all stages, to the range of options available to her.” It was further held that “the Court is required to step in to protect her, recognising that this will always require a complex, delicate, and sensitive evaluation of a range of her competing rights and interests.”

The Judge also held that the longer the situation went on, the greater the risk of stillbirth and this outcome would have a detrimental effect on SM, in view of her fragile mental health. The NHS Trust had a team of experts on hand to deliver the baby by caesarean section, against SM’s will, subject to the outcome of the hearing.

Mr Cobb said he was satisfied having given thought to all the evidence that it was clear that SM had lost capacity over the preceding days when she had become overwhelmed by anxiety and stress and should the situation arise again, if the welfare of the mother and baby was compromised to find that the caesarean section was necessary then it would be lawful for the hospital to go ahead with the procedure.

The NHS Trust provided details of the three options available which included vaginal birth, caesarean section under local anaesthetic and caesarean section under general anaesthetic. It was held that whilst previous examinations had not pointed out any concerns, in relation to delay, regular monitoring may not show any concerns with the baby and in view of the practical difficulties it was anticipated that some level of restraint may be necessary. It was also considered that SM would not be able to cope with spontaneous labour. Dr PA for the NHS Trust also explained that the chances of SM cooperating were low, and that further induction may cause distress and should not be embarked upon.

SM had submitted prior to the hearing that she wished to be able to deliver her baby with the least intervention and that she wanted to be aware and awake on delivery of the baby. She also maintained that she should be allowed to proceed to full term and would attend at the hospital for daily check ups if that was determined necessary. SM advised that the previous attempt at induction had been uncomfortable and she confirmed that she would be willing to give it a further try as she was now aware of the implications. SM also said that she had felt bullied by the NHS Trust. At the conclusion of the hearing SM agreed to a further attempt at induction failing which a caesarean section procedure would be performed.

Dr ZS concluded that SM had fluctuating capacity and was without capacity when overwhelmed with stress and anxiety.

Mr Cobb gave weight to SM’s wishes and considered that she was more aware of the circumstances and held that an induction should be attempted one further time. He ordered that should she become overwhelmed a caesarean section under general anaesthetic would be in her best interests to safeguard the well-being of SM and her baby.

SM was vaginally induced following the hearing and safely delivered a baby girl the following day.

The full judgement can be found here –

https://www.bailii.org/ew/cases/EWCOP/2022/56.html

For more information, please contact Tanya Foran by email at Tanya.Foran@clarionsolicitors.com

A Local Authority v PG & Ors [2023] EWCOP 9

hawamayetLeave a comment

 

This case concerns P’s views in relation to contact with care workers and receiving care where P’s capacity may fluctuate.

Background

P is a 34-year-old woman with a diagnosis of autism spectrum disorder, Emotionally Unstable Personality Disorder, and mild learning disability. She currently lives in a supported living placement. Before then, she lived with her mother where a deterioration in her mental health led to her being admitted under s2 of the Mental Health Act. There had been a number of incidents involving P around drugs, alcohol and approaching younger men in public and it was necessary for the Judge to consider whether P had capacity.

Views of the Social Worker and the Medical Expert

At the hearing, a social worker talked of potential triggers for P’s behaviour and Dr Jordan King, who is a Highly Specialist Clinical Psychologist at the Intensive Support Team of the Adult Neurodevelopmental Services for a NHS Trust, prepared a report for s.49 Mental Capacity Act 2005 purposes. Dr King gave oral evidence to the Court and was cross examined regarding P’s fluctuating capacity and the circumstances in which this occurred. Dr King explained that when P was calm, she could assess and weigh up risks but when faced with a trigger, P would become agitated and would struggle with weighing up and understanding information.

Conclusion

A Judgement was made that P should be deemed as lacking capacity, but emphasis was placed on the fact that when being assisted by the care workers, P’s autonomy should be protected, and interference should be kept to minimal levels to keep P safe.

The Judge considered the complexities of the fluctuating capacity for P and the difficulties the care workers would face in having to exercise a complicated decision-making process in order to decide whether at any individual moment P did or did not have capacity. This would then vary depending on the individual care worker, and how much of the particular episode they had witnessed. The Judge deemed that the result of this would fail to protect P, probably have minimal benefit in protecting her autonomy and in practice make the law unworkable.

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

10 Years of Cost Budgeting: Where we started, and where are we going?

Daniel MurrayLeave a comment

This month sees 10 years since the introduction of costs budgeting, which means we have experienced a decade of improved transparency on costs through the litigation journey.

Since the implementation of the Jackson Reforms there have been several case law developments and changes to the Civil Procedure Rules which in turn have shaped the overall effectiveness of costs management.

In the latest Clarion costs podcast, Anna Lockyer and Daniel Murray reflect on these changes, consider the impact these have had on engagement with the budgeting process and discuss the likely future of costs management as the outcome of the Civil Justice Council consultation on costs budgeting is awaited. You can listen to this discussion below.

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

Update on implementation of the extension to fixed recoverable costs

Robert PattersonLeave a comment

This third instalment of Clarion’s mini-series on preparing for the forthcoming fixed costs reforms, looks at recently announced changes following the Civil Procedure Rule Committee meeting on 3 March 2023.

It was intended that the new rules would take effect in October 2022, however implementation was delayed until April 2023. It was then announced in November 2022 that there would be a further delay until October 2023 due to the complexity of the reforms. It is still intended that the new rules will take effect from October 2023, however there will be changes to the scheme when it comes into effect.

Latest developments

The most important development is that there will be a general transitional provision whereby the new rules will apply to claims where proceedings are issued on or after 1 October 2023, save where the claim is for personal injury (including disease claims). In personal injury claims, the new rules will apply where the cause of action accrues on or after 1 October 2023 and they will apply to  disease claims where the letter of claim has not been sent to the Defendant before 1 October 2023.

A proposed new practice direction has been drafted setting out the rates for the fast track, intermediate track, and noise induced hearing loss claims. Previous versions of the rates were based on an initial report prepared by Lord Justice Jackson in 2017, and it has now been confirmed the rates will be uprated for inflation using the January 2023 Services Producer Price Index. This is an interesting development, as it was not expected that the rates would be uprated.

Other changes being considered include amended provisions in respect of disclosure to achieve a consistent approach between the fast track and intermediate track.

Next steps

Further drafting work will continue and it is anticipated that the final draft amendments will be presented to the committee ahead of the next meeting on 31 March 2023. This mini-series will be updated as and when further information becomes available.

Robert Patterson is a Senior Associate in Clarion’s Costs and Litigation Funding team. You can contact the team at CivlandCommercialCosts@clarionsolicitors.com

The use of electronic bills in Court of Protection cases

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Senior Costs Judge Andrew Gordon-Saker has now give some feedback on the use of the COP electronic bill which was implemented on 1 November 2022. The conclusion of the pilot is that electronic bills in this format should continue, which is great news for solicitors.

30-40% of Court of Protection bills were received in the electronic form and these have been a success in terms of the efficiency in undertaking assessments. The turnaround of the electronic bill of costs has been approximately 6 weeks, compared with a 6 month turnaround of the traditional bill.

The pilot is due to end on 28 April 2023 for all involved in Court of Protection cases following 5 months of review and this now means that Deputies, legal representatives and other legal professionals will file their bill in the electronic spreadsheet form using the approved template.

New bills and existing cases (with a CE File reference number) can be submitted to the Court using this method for assessment.

The SCCO has emphasised the importance of the filing the bill with the options beginning with “COP-E” however a previous blog prepared answers many common questions:

E-Bill FAQs – How does the new Court of Protection E-Bill work?

Please see the judiciary website for the approved template, under Guidance and Resources.

There will be some minor changes to the templates which will be uploaded on the judiciary website so please ensure that this template is used. Bills not compatible with the format will be rejected.

The best method of uploading the documents relating to the bill is as a single PDF with a chronological index via the Document Upload Centre. E-bundles are encouraged and are incredibly useful for those Deputies who work on a paperless or paper-light basis.

Requests for a link to upload files should be sent to: scco@justice.gov.uk.

As a team at Clarion, we were heavily involved in this pilot and we are pleased to see this change being implemented on a permanent basis. It is a great development for Deputies and their teams, speeding up turnaround times for assessment and simplifying the administration involved in the process. Clarion will continue to prepare all bills of costs in E-Bill format.

Additional information on E-Bills can be found here: https://www.judiciary.uk/guidance-and-resources/electronic-bills-in-court-of-protection-cases-pilot-in-the-senior-courts-costs-office/

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