Tag: Clarion Costs Team

Sunderland City Council v Macpherson (2023) EWCOP 3

Ella WilkinsonLeave a comment

The case of Sunderland City Council v Macpherson (2023) EWCOP 3 concerned the various orders which prevented FP’s mother from filming her and posting it on social media, as she lacked the capacity to give consent. This application by Sunderland City Council related to five alleged breaches of those orders amounting to contempt of court by Lioubov Macpherson (FP’s mother) as defendant in the proceedings. The judgment also deals with press reporting of the proceedings.

Background

FP was diagnosed with paranoid schizophrenia, experiencing auditory hallucinations including that people were going to kill her and to harvest her internal organs. She has been in and out of hospital over the past few years and since November 2021 has been living at her current care home, placement 3. FP’s schizophrenia has resulted in her resistance to treatment, and she requires care 24 hours a day. She continues to suffer from delusions and experiences  episodes of screaming. FP lacks capacity to make decisions regarding where she should live, her care, and her contact with others.

FP’s mother had been criticised in earlier proceedings (as seen in the previous judgment in SCC v FP and others [2022[ EWCOP 30)  over her behaviour towards care workers and attempts to control FP’s care, while also lacking a basic understanding of the impact of FP’s mental disorder. FP’s mother often told FP that the care staff were abusing her, and that she did not need the medication that they were providing her, as she did not have schizophrenia.

The defendant’s contact with FP was restricted and it was also ordered that the defendant  would have restricted contact with FP’s care staff and medical professionals. The judge also extended various orders prohibiting FP’s mother from recording FP and posting that content on social media, as it was considered to be demeaning and a breach of FP’s privacy.

Proceedings

The application to commit was originally brought in three applications made in November and December 2022. Those applications contained eleven alleged breaches of the injunctive orders made on 30 June 2022.The defendant admitted to the eleven alleged breaches at the first hearing of committal applications on 8 December 2022, however at the hearing on 16 January 2023, Sunderland City Council indicated that it did not seek to persuade the court that six of the admitted breaches constituted contempt of court.

Poole J reviewed the range of sentencing options available to him in the circumstances. The Judge noted that the defendant  ‘almost dared the court to sentence her’, however, that to imprison her would not be in the best interests of her elderly husband, of whom she acted as primary carer, or in the best interests of FP, as it would cause her further distress and upset and could lead to the deterioration of her mental state.

Conclusion:

Despite FP’s actions being an imprisonable offense, Poole J concluded that under the mitigating circumstances, alongside the fact that the posts had been removed from social media, he would suspend FP’s sentence of 28 days for 12 months. Poole J also concluded that the defendant could be names given the committal proceedings and ordered the amendment of the Transparency Order accordingly. 

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

Preparing for Fixed Costs reforms: Part 2

Daniel MurrayLeave a comment

In the second part of Clarion’s mini-series aimed at helping litigators prepare for the upcoming fixed costs reforms, we look at some interesting developments since the first part of the mini-series was published in November 2022.

Delay to the implementation of the extension to fixed costs

The biggest development is the announcement by the Ministry of Justice  that the implementation of the new fixed costs regime has been delayed by 6 months until October 2023.

Lord Bellamy announced on 18 November 2022 at the Civil Justice Council’s National Forum on Improving Access to Justice: “Extending FRCs requires an extremely complex set of reforms…”

“I know it hasn’t been an easy task. I know that these reforms have particular implications for housing cases, and I am grateful for the constructive input of housing providers which we continue to consider. 

“Progress has been made, and we hope the rules will be approved in the near future. But we’re also very conscious of how important it is to get this right.  

“That’s why I can today confirm that we’re giving these reforms a little more time… and will implement the extension of FRCs in October 2023, rather than next April as originally planned. We think this will give the sector more time to adjust to the new regime.”

It had previously been announced by Lord Justice Birss (Chairman of the CPRC)  that it was the intention of the committee to have a draft copy of the rules out to the profession  before they were approved. However, difficulties were identified in the minutes of the  committee’s October meeting regarding the drafting of the new rules, which indicated that it was not going to be possible to have the rules drawn in time.

The minutes from the December 2022 CPRC meeting, indicate that there is still an intention to provide the rules to the legal profession in draft form prior to their approval and it may well be the case that there is a copy for us to comment on in the next instalment. 

Further delays to the implementation of fixed costs in housing disrepair cases

Housing disrepair cases were set to become a new area of law covered by the extension. The MOJ announced earlier this month that the implementation of fixed costs in these cases will be subject to a further two-year delay, in addition to the October 2023 extension referenced above.

Resultantly, the earliest these reforms will be in place is October 2025, which takes us beyond the timeline for the next general election and brings into doubt whether the next government  will still have an appetite  to implement the proposals. 

Whilst this is good news for tenants and their Solicitors, the news will ultimately come as a blow to landlords faced with claims in which the legal costs often far exceed the costs of repairs.

Recovery of agency fees under the fixed costs regime

An interesting decision at County Court Level from District Judge Phillips, a Regional Costs Judge, was released in January 2023, which in our opinion has ramifications not only for the current fixed costs regime , but also the extended regime which will come into effect in October 2023. We are grateful to John Meehan of Kenworthy’s chambers for sharing a copy of the judgment with us.

District Judge Phillips, sitting in the County Court at Cardiff, confirmed in Wilkinson-Mulvaney -v- UK Insurance Ltd (19th January 2023), that, as things stand, agency fees are recoverable.

The case arose from a claim for personal injury in a low value RTA. At the costs hearing on 5 January 2023, the Judge dealt with several issues but the key issue in dispute was whether or not medical agency fees  were recoverable in addition to expert fees and any fees incurred obtaining medical records pursuant to CPR 45.19.

The Claimant’s Solicitors had obtained expert evidence via a medical agency and the invoices produced in support did not include a breakdown of the agency fees which were incurred in procuring that evidence. The Defendant argued that the agency fees were not recoverable, and it was only the expert’s fee itself that was recoverable. The Defendants argued that any medical agency cost were subsumed within the fixed costs that were recoverable by the Solicitors.

The Judge distinguished this case from the decision in Aldred v Cham (2019) EWCA Civ 1780, where it was held that Counsel’s advice fees in portal fixed costs cases were subsumed within Solicitor’s fixed costs awards.

The Judge held that the cost of obtaining a medical report, did include the fees of the agency. At paragraph 56 the judge stated: “had the drafters of the Rule and the Rule Committee wanted to limit the fees recoverable to those only paid to the doctor, they could have quite easily made this clear in the Rule, they chose not to do so.”

The Judge also went on to confirm that if he was wrong in determining that the fees were recoverable as a disbursement, then the Court was still able to allow a reasonable sum for medical report fees, taking into account the guidance in CPR 44.3 and CPR 44.4.

Further important comments were made by District Judge Phillips, who indicated that it would be helpful if breakdowns were provided on invoices of the time spent by experts in preparing reports, as well as a breakdown of agency fees.

This latter guidance, in our opinion, could be significant ahead of the extension of the fixed costs regime. As the regime expands to cover cases of greater value, the level of expert fees sought under the fixed costs regime will increase, as will  the number of fixed costs disbursement disputes. This is on the basis that a lot of the cases which will be captured by the regime currently fall under the provisional assessment procedure, in which disbursement disputes are common.

Assuming that no provisions are made within the new rules which preclude the recovery of agency fees, ahead of the extension it is advisable to engage in discussions with agencies to establish whether invoices can be produced which provide a clear breakdown of agency and expert fees, to assist the Court with disputes.

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

Did P have capacity to make decisions surrounding his residence, care, sexual relations and access to social media given his diagnosis?

elliescallyLeave a comment

The case of DY & A council & A NHS Trust [2022] EWCOP 51 concerned whether DY had capacity to make decisions surrounding his care and support arrangements, given the threat posed by his sexual behaviour to the public. The application also dealt with the upcoming expiry of the standard DOLS authorisation in place for DY.

Background

Shortly after DY was born, he was the subject of care proceedings and has been throughout most of his life. As a result, a Care Order was granted on the basis that he would return home to live with his parents. At the age of 10 years old, DY began demonstrating sexualised behaviour and was self-harming. As a result of having a stoma bag fitted when DY was a teenager, he suffered from ill health.

In DY’s mid-teens, he suffered from serious mental health issues which included exacerbated self-harming and more frequent suicide attempts. In 2011, DY was diagnosed with Autistic Spectrum Disorder and Generalised Anxiety Disorder and Paedophilia. As a result, in 2016, DY was detained under Section 3 of the Mental Health Act and this meant that he was placed at a hospital unit. A year after, in 2017, it was determined that DY lacked capacity to consent to his detention and treatment under the Mental Capacity Act. Also, in 2017, DY pleased guilty to two offences of sexual assault of a girl aged under 13. As a consequence, he received a 26-month Youth Rehabilitation Order, was placed on the Sex Offenders Register and was prohibited from having contact with children under 16. He was also determined to pose a risk to his mother.

In 2019, he moved to his current placement and was still deemed as lacking capacity to make decisions about accommodation and care. Several provisions were put in place due to his sexualised behaviour.

Proceedings

On 25 May 2021, in line with Section 21 of the Mental Capacity Act 2005, proceedings were issued that challenged DY’s deprivation of liberty at his placement. The grounds of the challenge were that the mental capacity qualifying requirement in paragraph 15 Schedule A1 and the best interests requirement in paragraph 16 Schedule A1 were not met.

Dr Christopher Ince, who was a Consultant Psychiatrist currently working in Forensic Learning Disability and Autism Services at Northgate Hospital in Northumberland, was instructed to prepare a detailed report on the DY’s capacity to take part in the proceedings and whether he had capacity to make decisions regarding his residence, care, contact, sexual relations and access to social media. The report was produced on 14 April 2022. He concluded that DY had capacity in relation to all the domains set out.

Discussions and conclusions

The Judge decided that DY had capacity to make decisions as to his care and support. He stated that “In arguing otherwise, it seems to me that the respondents are setting the bar of capacity at too high a level”.

The Judge deemed that DY understood the risks he posed and he expressed his fear of what would happen to him if another offence was committed. The Judge expressed that he understood why the parties were concerned, but that any further offending by DY was a matter to be dealt with under the criminal justice system.

Conclusion

The standard authorisation was terminated in accordance with paragraphs 15 and 16 of Schedule A1 Mental Capacity Act which meant that DY would no longer be subject to a Deprivation of Liberty Authorisation.

DY would continue to be offered the same care package which included help with his daily living and medication, and he was strongly encouraged to continue to be accompanied by at least one care worker whenever he went out.

DY remained on the sex offenders register and was offered the psychological help and therapy that he so clearly needed as a matter of urgency, for his own benefit and of course the protection of the public.

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

Important Changes to the Qualified One Way Costs Shifting (QOCS) Rules

Joanne ChaseLeave a comment

Introduction

Qualified One-Way Cost Shifting (QOCS) is a legal rule in the UK that was introduced in 2013 to limit the liability of a claimant for the defendant’s costs in personal injury and related claims.

For the time being claimants can settle claims in a number of ways before trial and still be able to rely upon QOCS protections.

Key judgments

Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654

Defendants could not enforce costs against damages recovered via settlement where deemed costs orders (Tomlin Orders and accepted Part 36 offers) are relied upon. They are not orders of the court for the purposes of QOCS. If it had been the intention for rule 44.14 to cover settlements of whatever kind, different words and greater guidance would have been required.

Ho v Adelekun [2021] UKSC 43

The Supreme Court held that setting off costs against costs is a form of enforcement, and therefore covered by the QOCS provisions just as a set off between costs against damages would be. 

Further judgments at the end of 2022 reinforced these appellate decisions where lacunae were identified and clarity provided:

Chappell v Mrozek [2022] EWHC 3147 (KB)

Master Stevens rejected the argument that a defendant’s entitlement to costs, arising from late acceptance of a Part 36 offer, could be enforced from a claimant’s damages.

University Hospitals of Derby & Burton NHS Foundation Trust v Harrison [2022] EWCA Civ 1660

The Court of Appeal rejected the defendant’s argument that QOCS protection was lost when the court was called upon to make an order under r.36.22(9) providing permission to accept an offer.

April 2023 Amendments to CPR

In May 2022 the Civil Procedure Rule Committee recommended changes to QOCS following the Supreme Court’s comments in Ho .

On 2nd February 2023 The Civil Procedure Amendment Rules 2023 were laid before Parliament with the stated intention that they should come into force on 6th April 2023, amending the Civil Procedure Rules 1998 from that date.

Among many other changes, rule 24 of the Amendment Rules amends CPR 44.14 so that deemed orders can be enforced, and offset against an aggregate of damages, interest and costs. The proposed changes to rule 44.14 are underlined below:

(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages, or agreements to pay or settle a claim for, damages, costs and interest made in favour of the claimant.

(2) For the purposes of this Section, orders for costs include orders for costs deemed to have been made (either against the claimant or in favour of the claimant) as set out in rule 44.9.

(3) Orders for costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.

(4) Where enforcement is permitted against any order for costs made in favour of the claimant, rule 44.12 applies.

(5) An order for costs which is enforced only to the extent permitted by paragraph (1) shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record.

Key Points

Four key points arise from these amendments:

  1. The rule at new CPR 44.14(1) will allow a defendant to enforce their costs entitlement up to the extent of any aggregate settlement, to include all damages, costs and interest made in favour of the claimant.
  2. Cartwright has been explicitly reversed: the rule at new CPR 44.14(2) will allow a defendant to enforce their costs against any type of settlement, including deemed costs orders such as Part 36 and Tomlin Orders.
  3. Ho has been explicitly reversed: the rule at new CPR 44.14(4) will allow set-off of the defendant’s costs against the claimant’s costs.
  4. Rule 1(3) of the Amendment Rules confirms that the amendments set out in rule 24 are subject to transitional provisions. This means that they only apply to claims where proceedings are issued (not served) on or after the 6 April 2023.

Outcome

The transitional provisions are helpful in providing clarity to the position as, in my experience, defendants have not settled costs on the basis that the changes could be retrospective.

In the short term, our advice to claimant firms would be to issue any claim before 6 April 2023, where possible, to ensure that your client retains the more favourable QOCS rules.

Any accusations by defendants that the issue of these claims was premature should be simply rebutted by the argument that it was reasonable to take advantage of the transitional provisions, and to do otherwise was not in the claimant’s best interest.

It is very likely that many claimant firms will seek to issue relevant claims before 6 April 2023 to preserve the QOCS protections of the existing regime for those cases. This increase in issued claims over the next 2 months is likely to have a detrimental effect on court capacity and waiting times. Given the existing backlog, this is not inconsequential.

Litigants and litigators on both sides will need to factor in the rule changes when considering case strategy and settlement post April 2023.

Defendants will be motivated to make early Part 36 offers, in some cases before any, or adequate, expert evidence has been obtained. These early offers will need to be given extremely thorough consideration and could result in many claims settling prematurely simply because of the very real concerns of the claimant regarding their potential costs liabilities.

These rule changes may well stimulate claimant lawyers to seek ATE insurance products that insure the claimant’s lawyers’ own fees, to ensure that these are not drained by setoff. The cost of this ATE insurance will not be recoverable.

Longer term, there could be an increase in satellite litigation. This could be prompted by the very different QOCs regimes running in parallel for a period of years, or due to unintended and unforeseen consequences of the changes.

Analysis

QOCS was pivotal to the Jackson reforms of personal injury litigation that took place in 2013. These amendments constitute a significant change to the QOCS rules and reverse one Supreme Court decision and a number of Court of Appeal decisions.

Defendants will claim that the new rules “level the playing field” in personal injury litigation and bring back teeth to defendants’ offers to settle.

It is certainly evident that claimants will have more “skin in the game” moving forward. Claimants will have to consider carefully the costs consequences of any defendant’s offer as the costs protection provided by the current version of the QOCS rules will be lost.

These rule changes have made bringing a claim much more uncertain and will therefore raise further questions around access to justice.

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

Andrew Crisp is a Costs Lawyer in the Costs and Litigation Funding Department at Clarion Solicitors. 

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

Changes to the Deputy Standards 2023

Ellie Howard-TaylorLeave a comment

There has been an update to the existing Property & Finance and Health & Welfare Deputy Standards (‘Standards’), which will come into effect from mid-February 2023.

The single set of refreshed standards will apply to everyone who has been appointed as Deputy, including lay Deputies. Guidance tailored for professionals, public authorities and lay Deputies will also be published at the same time.

This is not the introduction of a new set of standards. The guiding principles of the refreshed standards remain the same and continue to be aligned with the Mental Capacity Act (MCA). The main changes are to make the standards more focused.

What has been changed?

The number of standards has been reduced from more than 40 to 8 core areas, which reflect the duties and responsibilities of all Deputies. Much of the material included in the original standards has now been re-shaped and included within the guidance documents.

The Office of the Public Guardian (OPG) has contacted all Deputies to notify them of the changes.

The refreshed standards can be found at published at https://www.gov.uk/guidance/opg-deputy-standards.

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

Laura SugarmanLeave a comment

From 1 November 2022 the COP E-Bill came into force. This will look slightly different to the Bills that COP practitioners are used to and will include some additional information including various categories and a separate part for the inclusion of P’s assets. We recently participated in a successful pilot scheme and will be submitting all Bills from 1 November 2022 in this new format.

Below are some common queries about the E-Bill and how to resolve these.

How does the Deputy or person authorised by the firm to sign on behalf of the Deputy certify the Bill of Costs?

The Deputy or authorised person is still required to certify the Bill as before. However, on the new E-Bill format the legal representative’s name can be typed or printed into the ‘Certification’ tab. Please be aware that the ‘Post Assessment Certificates’ section is only to be certified once you are requesting the Final Costs Certificate following assessment.

Where will information relating to any interim payments taken be entered?

Similarly to the PDF Bills, the E-Bill requires you to disclose any interim payments taken on account of costs for the period. This information should be entered on the ‘Certification’ tab in the first box.

How will the new E-Bill be E-filed using the SCCO portal?

The process for E-filing the Bill of Costs remains very much the same. You are still required to submit the certified Bill, Order, certified N258B and disbursement evidence as before, but use the new options on the E-filing service beginning ‘COP E-Bill’. If the Bill and N258B are not certified by an authorised person, then the submission will be rejected by the SCCO.

What will happen to the E-Bill on assessment?

Once the E-Bill is received and approved by the SCCO, it will be allocated to a Costs Officer who will review and assess in the usual way. The Costs Officer is able to make changes to the Bill where appropriate and the E-Bill will recalculate this automatically. The Costs Officer will use a series of codes and mark these on the E-Bill so that you can determine the reasons given for the reductions.

How will the E-Bill be returned following assessment?

The E-Bill now includes a contact email address section on the front sheet, which should be completed when drafting the Bill. Following assessment, the E-Bill will be sent via email to the address provided.

How should the E-Bill be served on interested parties where required?

If you are required to serve the Bill on interested parties then this should be provided to them as a PDF version of the E-Bill. Please request this from your Costs Draftsperson who would be more than willing to assist.

How can I ensure my E-Bill is compliant with new the new requirements?

There are some new requirements when using the E-Bill format that are likely to cause some minor issues if they are missed. Below are some ways in which you can assist your Costs Draftsperson in ensuring the E-Bill is ready to be submitted to the SCCO.

SCCO reference – there is a section on the front sheet that relates to the unique SCCO reference for each matter. This can be inputted prior to submission to the SCCO to help avoid any rejections based on the matter already existing. Please provide the SCCO reference to your Costs Draftsperson if known.

OPG105 estimated costs – there is an increased emphasis on providing the OPG105 estimated costs for the period when using the E-Bill. Please provide the OPG105 costs estimate to your Costs Draftsperson so that this can be included in the Bill.

P’s assets – the E-Bill now includes a specific section relating to P’s assets so that the Costs Officer can consider these. Please provide this information to your Costs Draftsperson and they will include it in the Bill accordingly.

Fee earner rates – please provide a breakdown of the fee earners who have worked on the matter and their date of professional qualification so that these can be included in the Bill.

Amendments – if you require any amendments to the E-Bill please consult your Costs Draftsperson. The E-Bill uses complex algorithms to calculate the totals within the Bill and any changes made could affect these and corrupt the Bill. We therefore recommend that you ask your Costs Draftsperson to make any amendments you require, rather than attempting this yourself, as it could cause issues with the E-Bill later down the line.

The introduction of the COP E-Bill will revolutionise the COP sector and should have a positive impact on assessment times and also result in less administration time following assessment, as the Bill is automatically recalculated in this 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

Gloucestershire County Council and AB (By Her Litigation Friend, The Official Solicitor), SB and NHS Gloucestershire Integrated Care Board

elliescallyLeave a comment

This recent case concerned the care plans in place for an individual, AB, given the risk of her self-harming. Further points surrounding her capacity to access the internet and social media were also considered within the case, as well as her ability to access implements that could be used to inflict self-harm.

History:

In September 2022, a standard authorisation was granted by the Local Authority (Gloucestershire County Council) in respect of AB’s care and support arrangements within Placement A, following her reaching the age of 18. 

The same was challenged by the Official Solicitor who, on behalf of AB, challenged several matters such as whether the mental capacity requirements had been met, whether the best interests requirements had been met, and asked the Court to consider the period during which the standard authorisation was to be in force and the conditions subject to which the standard authorisation was given. Observations were also made regarding the relevance of Article 2 European Convention on Human Rights, and a duty which had arisen for the Local Authority that would require them to take reasonable steps to provide protection to AB from a real and immediate risk to life.

A hearing was listed for 28 and 29 September 2022, and the parties and the Court had identified the issues for determination as follows: whether AB had capacity to access the internet, and if AB did lack capacity, what was in her best interests in this regard and was the best interests qualifying requirement met in respect of AB’s care and support arrangements.

Whilst preparing for the hearing, it was revealed that the AB was self-harming. AB was subject to significant levels of restraint when her self-harm was of concern to her care staff. There was an incident on 18 August 2022, whereby AB self-harmed by cutting her neck region. This resulted in a “Safe Self Harm Care Plan (Cutting)” being prepared by the care provider.

Hearing

On 28 September 2022, the Court heard evidence from a registered mental health nurse who had implemented the care plan and an independent expert, Dt Ty Glover.

On 29 September 2022, the Senior Judge attend upon AB via Microsoft Teams, and it was noted that AB expressed confusion about the “lack of consistency in how she was permitted to self-harm and when she was not, and a feeling that she was not properly supported whilst at the same time overly restricted.”

Following various pieces of evidence provided by several parties, it was agreed that a risk assessment, an immediate review of practices, and consideration in relation to whether tolerating a degree of self-harm from AB was clinically appropriate and in her best interests needed to be undertaken urgently.

The Official Solicitor stated that the practice in which the carers were able to implement their own care plans was “clinically, ethically and legally unsustainable”. Also, the Official Solicitor questioned the legality with regard to whether a self-harm arrangement could be authorised by way of a schedule one.

Following this, an applicant at the Local Authority submitted that a social worker would be appointed for AB urgently. In addition, it was noted that the Deprivation of Liberty Safeguards Assessor and best interests assessor were not aware of the support arrangements around restraining AB and wider support provisions in place.

It was discussed and considered between the parties whether AB’s care arrangements should revert to how they were previously or whether a new approach should be implemented. The Senior Judge invited the parties to consider a hybrid approach.

In relation to whether AB had capacity to access the internet and social media, it was put forward by the Official Solicitor and the other parties that in the particular circumstances of AB, it was unknown whether AN would be subject to self-harm videos and encouragement of the same.

Outcome

At the outcome of the hearing, it was ordered that the standard authorisation dated 26 September 2022 was terminated.

It was ordered and directed in the interim that:

  • AB would reside in Placement A conforming to the arrangements set out by the Local Authority and under the care plans made in September 2022.
  • AB’s access to social media and the internet may be restricted when in distress
  • AB’s access to items in which she could use for self-harm would be limited in her best interests
  • Any changes to make AB’s care plan more restrictive must be brought before the Court
  • That the restrictions in place pursuant to the care plan in place for AB amounted to a deprivation of her liberty, authorised as being in her best interests and as necessary to prevent harm to her

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

Proportionality

Tanya ForanLeave a comment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cambridge University Hospitals NHS Foundation Trust & Anor v RD & Ors (2022) EWCOP 47

hawamayetLeave a comment

This case concerns P who had been diagnosed with an Emotionally Unstable Personality Disorder which had resulted in two incidents of self-harm in which the inserting of a tracheostomy tube, led P to attempt to cut her throat. P was given the choice to either keep the tracheostomy tube, reduce and then stop sedation and to undertake training to manage her tracheostomy in the longer term or have the tracheostomy tube removed following which a palliative care plan would be put into effect. A Court of Protection hearing was listed on 12 August 2022.

Background of the case

P has a long history of mental health difficulties and has spent significant periods in psychiatric units since the age of 15. Since 2021 she has had three periods of detention under the Mental Health Act. P has been diagnosed with Emotionally Unstable Personality Disorder, Post Traumatic Stress Disorder and at some points with Psychosis. P has had many incidents of very serious self-harm.

As P had previously tried to remove her tracheostomy tube twice, a decision was to be made as to whether to keep the tracheostomy tube, reduce and then stop sedation and undertake training to manage her tracheostomy in the longer term or have the tracheostomy tube removed following which a palliative care plan would be followed.

Views of P’s Parents and Dr A

When P was calm, she expressed a desire to live and P’s parents explained that this had become a pattern over the years in which P would express her view that she wished for treatment and would then begin self-harming.

P’s doctor (Dr A) explained that P had a psychological need for autonomy and the only realistic hope for P was for her to believe that she was in charge of her own life. Dr A explained that if P believed nobody would intervene to prevent her harming herself, she may not remove the tube. However, this plan could also lead to her death.

Role of the Official Solicitor

An Official Solicitor was enlisted to work on the case because of the difficulties in establishing the degree to which P had capacity and in establishing what her wishes were. The Official Solicitor accepted that the Court should seek to maximise P’s autonomy and that there was little prospect of any long-term recovery from her mental ill-health.

Conclusion

Before a judgement could be made, P sadly passed. However, in the judgment later released, it was stated that it was in P’s best interests, for the care and treatment plan proposed and agreed by all parties to be put in place, accepting that this may lead to her death.

With regards to whether the Court of Protection had jurisdiction on the matter, due to the fact that P lost capacity when she was distressed, the Judge ruled that this was a Court of Protection matter.

The Judge considered the parents views that they believed that the time had come to let P make her own choice which regards to her care. The evidence of Dr A, and P’s parents was that the most important thing for P was a sense of autonomy. This would suggest that continued physical restraint and replacing the tube if she removed it, undermined P’s autonomy and further damaged her mental health. The judge was guided overall by the sense of autonomy for P as restraining her and replacing the tube offered no long-term solution to her physical or mental issues. There was very little, if any, prospect of any long-term improvement to P’s mental health. Therefore, that form of treatment appeared to be futile in anything other than the very short term.

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