Tag: Clarion Costs Team

NEW update from the SCCO on COP assessment delays

Stephanie KayeLeave a comment

Yesterday, the SCCO have released a further notice in relation to the ongoing delays with COP assessments.

In summary, turnaround is as follows at present:

  • Bills received at the mid-December 2021 are currently being assessed
  • The Admin Team are processing the return of assessed bills received back from the Costs Officers in the first week of June
  • New filings for assessment received from the first week of May are being considered for acceptance/rejection
  • Certificate request filings received in the last week of May are currently being reviewed and actioned

Please see the link below for the full notice released:

Notice-to-COP-customers-13-June-2022Download

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

Behave unreasonably in litigation and pay the price. A reminder from the High Court

Daniel MurrayLeave a comment

The High Court has delivered an important reminder to parties, of the potential repercussions in respect of costs if they act unreasonably throughout the litigation.  

In VV v VV [2022] EWFC 46, Mr Justice Peel stated “I am satisfied that it is appropriate for W to make a contribution towards H’s costs. It does not seem to me to be unfair to invade her needs based award to an extent. She should not be entirely protected from costs consequences.”

The case was a divorce dispute, for which the default position in respect of costs is usually that the parties should bear their own costs. Pursuant to section 28.3 (6) FPR however, the Court may make a costs order against one, or both parties. The factors to be taken into consideration when making any potential awards are listed in section 28.3 (7) FPR and are as follows:

(b) any open offer to settle made by a party;

(c) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(d) the manner in which a party has pursued or responded to the application or a particular allegation or issue;

(e) any other aspect of a party’s conduct in relation to proceedings which the court considers relevant; and

(f) the financial effect on the parties of any costs order.”

Rule 4.4 of Practice Direction 28A states that:

“The court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs. This includes in a ‘needs’ case where the applicant litigates unreasonably resulting in the costs incurred by each party becoming disproportionate to the award made by the court”.

Following the division of assets, H sought an order for costs from W in the sum of £450,000. £400,000 of W’s costs had already been paid by H, and a lump sum payment of £750,000 which was awarded to W meant that the net outcome of the judgement was that H would have covered in full the costs incurred by W.

After considering the facts of the case, H was awarded £100,00 towards costs, to be offset against the lump sum payment to W of £750,000. The judge was critical of the fact W had fell short of her financial proposal by over a figure of £5 million and had failed to succeed on 2 key evidential points. One of which had cost H significant sums.

It was stated that this costs award would have been higher had it not been for H’s own unreasonable conduct, which included a failure to fully disclose financial assets.

The case serves as an important reminder to parties, that their behaviour can have a significant impact on their costs recovery, regardless of whether or not your opponent has also acted unreasonably.

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

Reference to Part 36 offers at CCMC’s. What is the position?

Daniel MurrayLeave a comment

The provisions of CPR 36.16 (2) specifically state that:

‘The fact that a Part 36 offer has been made and the terms of such offer must not be communicated to the trial judge until the case has been decided’.

There are a small number of exceptions to this rule, which are listed in CPR 36.16 (3), but what is not explicitly dealt with, is the position as to whether offers can be disclosed to an interlocutory judge.

Barring an agreement to make reference to any offers pursuant to CPR 36.16 (3) (C), a party wishing to make reference to an offer may therefore be forced to make an application to rely on such information. This was the position and point of principle discussed in the recent case of FKJ v RVT & Ors [2022] EWHC 411 (QB). Here, the Honourable Mrs Justice Collins Rice heard an appeal from an earlier decision by Senior Master Fontaine, who had rejected such an application.

In the grounds for their appeal, the Appellant’s relied heavily on the reference to ‘trial judge’ within the construction of CPR 36.16, to suggest that the bar on the communication of offers did not extend when the judge overseeing preliminary issues or case management would not be presiding over the final hearing. Although in submissions, the Appellant had acknowledged that whilst there was no unqualified entitlement to refer to such offers, even where it was known that the judge hearing preliminary issues was not the trial judge.

Support was gathered in these submissions from White Book commentary on Rule 36.16, which includes the following:

Interim Hearings – As stated in r.36.16(2), the general rule restricts disclosure to the ‘trial judge’ and it has long since been understood that it does not prevent disclosure to a judge dealing with interim matters in the course of which it may be both necessary and desirable for the judge to know of offers made (Williams v Boag [1941] 1 KB 1, CA). Nowadays, of course, parties and their solicitors should be aware of the need for different approaches to references to offers depending on whether the judge conducting the CMC [case management conference] or other interim hearing is, or could be, the trial judge. This is of particular importance where the designated civil judge is conducting the pre-trial proceedings or in specialist courts where case management is undertaken by judges rather than masters or district judges.

Mrs Justice Collins was not swayed by this reference, on the basis that the decision in Williams v Boag preceded the provisions of Part 36 by a number of years. She was also not convinced that further authorities relied upon, provided sufficient assistance to overturn the initial decision and satisfy the criteria required by CPR 52.

Subsequently Mrs Justice Collins determined that, ‘authorities … cited … provide limited assistance, analogous at best. Unless there are clearer authorities …, I am inclined to agree that the question of principle remains outstanding, however surprisingly. In an appropriate case, it may be necessary to resolve that question definitively one way or the other. I do not, however, consider the present appeal to be that case, …’.

It appears to be therefore, that unless the rules committee or another authority clarify the position, the most sensible course of action would be for a party wishing to rely on an offer during the budgeting or case management process to make an application to the Court, absent any agreement, and seek to sway their view based on the facts of the case.

Whilst at most CCMC’s there may be no need at all to refer to Part 36 proposals, it can be envisaged that they may be useful when a party seeks to hang their hat on the ‘sums in issue’ limb of the proportionality criteria, when attempting to sway the Court that the budgeted sums claimed are proportionate or disproportionate.

There are of course several factors which determine whether legal costs are proportionate, in this writer’s experience the factor which seemingly plays the biggest role in setting an appropriate costs budget, is the level of the costs budget in comparison to the claim value. Parties wishing to take this approach should therefore proceed with caution until there is further commentary on the issues.

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

Further 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 end of October 2021, and the Admin Team are working on returning bills that have been assessed, and are currently up to those at the start of April.

With regards to e-filing, new filings submitted around the start of March are currently being dealt with, and final costs certificate requests received in the third week of April are being processed at present.

Notice-to-COP-customers-03-May-2022-SCCO-1Download

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

MB v PB [2022] EWCOP 14 – Should the Protected Party continue to have contact with her husband?

elliescallyLeave a comment

Background 

In 2018, the Protected Party suffered from a severe brain haemorrhage. She had been assessed as lacking capacity to make decisions regarding her residence and care. The Protected Party relied completely on others for her care and had resided in a care home since 2019.  

There were safeguarding issues surrounding whether the Protected Party should have contact with her husband due to his conduct towards her, and there had been significant concerns about his combative approach towards the medical professionals involved in the Protected Party’s care.  This meant that in February 2019, his contact with the Protected Party was reduced to 2 hours a day, and the visits had to be supervised.

Proceedings thereafter resulted from the Protected Party’s husband challenging the contact restrictions that had been put in place. The proceedings had been brought to challenge S21A of the Mental Capacity Act 2005. The Court had the power pursuant to S16 of the Mental Capacity Act to make decisions on behalf of Protected Party as an incapacitated adult.

The care home had served notice to remove the Protected Party from their premises, due to the husband’s inappropriate behaviour. In June 2020, the Protected Party’s husband began proceedings to obtain an Order for the Protected Party to return to the family home and reside with him. He was adamant that the contact restrictions placed upon the Protected Party were not in her best interests.

The Protected Party’s husband denied the allegations he was accused of, and so matters progressed to a hearing. At this hearing, the Protected Party was represented by the Official Solicitor.

The Hearing

The Judge found that there was a pattern of controlling and coercive behaviour by the Protected Party’s husband before the Protected Party was admitted into full time care, and that the same continued after. The Protected Party’s husband had also been accused of touching the Protected Party inappropriately.

It was also noted that the Protected Party’s husband was controlling and had an overbearing attitude towards the care staff in order to control and limit the contact the Protected Party had with family members. The staff members advised that they noticed a change In the Protected Party’s behaviour when the husband arrived to visit. It was noted that the Protected Party found contact with her husband to be upsetting and unwelcoming, however on occasion did appear happy following the visits. 

The Protected Party’s sister reported that the Protected Party was on edge most of the time he visited the care home, and when she resided at home, that she was not allowed to leave the property without his permission. She further reported that the Protected Party had been let go from several jobs due to her husband loitering outside and making colleagues feel uncomfortable. In addition, she alleged that the husband did not let the Protected Party have contact with any men.

Outcome

A conclusion was reached that it was not in the best interests of the Protected Party to stop her husband from visiting at the care home and from maintaining contact with her, with the Judge stating that: 

“I am not making at this stage a best interests judgment that contact should take place, but I am expressing a strong desire that its practicality should be explored with a hope that a trial might take place in which P’s reaction may be observed.”

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

A Local Authority v ST (Costs application) [2022] EWCOP 11

hawamayetLeave a comment

Background

An application for costs was made by the Official Solicitor following an ineffective hearing about whether the Protected Party had sufficient capacity to use social media.

The hearing was due to take place in the midst of proceedings concerning a Protected Party, a young woman with a diagnosis of a mild learning disability and ADHD which was exacerbated by childhood trauma. She had gone missing over Christmas 2021 and there was an agreement that she lacked the necessary capacity to make decisions regarding her residence and care so interim orders were made for the Local Authority. There was a disagreement between the Local Authority and the Official Solicitor over the Protected Party’s capacity to use social media and the Local Authority wanted to restrict the Protected Party’s access to social media.

A hearing was to be held on 3 March 2022 and the social worker’s statement was due to be served before noon on 25 February 2022 but was instead served after 5 pm that day. The Local Authority’s position statement was due at 4pm on Monday 28 February 2022 and the timetable was established as such so that the social worker and the legal team at the Local Authority should have been ascertaining their position but this did not happen. Instead on 1 March 2022, the Official Solicitor’s statement was served on the Local Authority in compliance with the directions, but Counsel for the Local Authority was instructed the next day to draft a position statement and appear at a hearing. That document was dated 2 March 2022 and was sent to the Court before 5pm on 2 March 2022. That position statement conceded that there was insufficient evidence to rebut the assumption of the Protected Party’s capacity to make decisions about accessing the internet and social media.

In personal welfare cases the ‘general rule’ as to costs is that “there will be no Order as to the costs of the proceedings.”: COPR’2017 r 19.3. However, the conduct of the parties in the proceedings could lead to an Order being made.

COPR 19.5(2) states:

The conduct of the parties includes

(a) conduct before, as well as during, the proceedings;

(b) whether it was reasonable for a party to raise, pursue or contest a particular matter;

(c) the manner in which a party has made or responded to an application or a particular issue;

(d) whether a party who has succeeded in that party’s application or response to an application, in whole or in part, exaggerated any matter contained in the application or response; and

(e) any failure by a party to comply with a rule, practice direction or court order.

Findings

The matter that led to the hearing of 3 March 2022 was whether the Protected Party had capacity to make decisions about social media access and, if she did not, whether it was in her best interests for restrictions or a prohibition to be imposed. The Official Solicitor’s position was clear and the Local Authority was aware that this was the subject of the hearing. It was important to both parties, but particularly the Local Authority who sought to restrict her social media use, to ensure that they conducted themselves in accordance with the directions made by the Court and consider the strength of their case continually. A failure to do so by either side could have led to an unnecessary expenditure of time and money.

The Judge ruled that the Local Authority should have known by 25 February 2022 that their case was weak. The failure to serve an updated paginated bundle by 4 pm on 28 February pointed to a lack of time. The social worker’s witness statement was also served late. Had matters proceeded as they should, by Monday 28 February 2022, the Local Authority should have had a clear position, and that should have been the subject of their position statement that should have been served by 4 pm that afternoon. It was not. Instead, the Official Solicitor had to provide a position statement responding to the Local Authority’s unknown case. By the time the Local Authority instructed Counsel, the deadline for their position statement had passed. At no stage did the Local Authority seek an extension to the timetable, or to vacate the hearing on 3 March.

The Judge was satisfied to depart from the general rule as a result of the failings of the Local Authority as their conduct had fallen below a proper standard. It was found to be unreasonable for the Local Authority to continue to pursue the specific matters in relation to social media restrictions, when the capacity and best interests evidence was weak. There was a failure to comply with the directions Order that had been made by the court with the parties’ general agreement.

The Judge when deciding what Order was to be made considered that some directions would have had to be made once it was clear that the hearing listed  was to be ineffective. Time would have had to be incurred in formulating an Order. However, none of that was likely to have involved a hearing and if it had, it would not have been all day or have needed to be attended.

Decision

The Local Authority was ordered to pay 85% of the Costs incurred by the Official Solicitor of and incidental to the hearing on 3 March 2022, not including the cost of the judicial visit, which would not have occurred.

If the parties could not come to an agreement on a liquidated sum, the Judge directed that the Official Solicitor submit to the Court within 14 days, a costs schedule and the Local Authority would have 7 days to contest the same. The costs would have been assessed after that.

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

The use of the Damages Claim Portal now mandatory for all claims for damages commencing in the County Court

Daniel MurrayLeave a comment

In a move which is very much in line with the Master of the Rolls vision for online digital justice, the use of the Damages Claims Portal for all claims for damages commencing in the County Court, is now mandatory for legally represented Claimants from today.

The pilot scheme had previously been in effect from May 2021 and will run until April 2024. The 142nd update to the CPR, which was released on 28 March makes the use of the online system mandatory.

There are a number of exceptions to this requirement, amongst which are, if the Claimant is a protected party, or the case is one to which the Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit applies.

The full list of exemptions and guidance on how to follow the portal process can be found in Practice Direction 51ZB.

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

Supreme Court finds in favour of Claimant Solicitors seeking an equitable lien over costs

Daniel MurrayLeave a comment

In a favorable judgment for Claimant Solicitors, the Supreme Court has decided by a narrow 3:2 majority that the Claimant’s Solicitors were entitled to an equitable lien over their clients’ compensation for their costs.

The Facts

The case centered around proceedings brought against Ryanair by Bott & Co Solicitors, a North West firm who handle a high volume of delayed flight compensation claims. The Defendant had been leapfrogging the Claimant’s Solicitors once a claim was submitted and settling matters with the Claimants, who in turn were not passing on costs due to Bott & Co. The Claimant’s Solicitors acted on Conditional Fee Agreements in the cases, with costs being 25% of the total compensation amount awarded to the client plus VAT, plus an administration fee. Costs were to be deducted from the compensation before it was paid to the Claimants. Bott brought proceedings, seeking both an equitable lien over the compensation and injunction to prevent Ryanair taking this approach in cases where notice that they had been retained had been provided.

The Decision

In determining the key issues, consideration was given to the Court’s earlier decision in Edmonson v Haven [2018] UKSC 21. Here the Supreme Court examined the role of the solicitor’s equitable lien in the context of modern litigation, where access to justice is a central underlying goal and out of court settlements and alternative dispute resolution are encouraged. In Edmonson, the Court had decided that the solicitor was entitled to an equitable lien over the settlement fund because the work had made a significant contribution to the settlement of the client’s personal injury claim. That case flowed from the position whereby a Claim Notification Form had been submitted through the Pre-Action Protocol for Low Value Personal Injury Claims. This, in the words of Lord Burrows ‘implicitly overruled’ the Court of Appeal’s decision in Meguerditchian v Lightbound [1917] 2 KB 298, which decided that the trigger for an equitable lien was whether proceedings had been issued.

Being bound to follow the decision in Edmonson, Lord Burrows for the majority, stated that ‘the appropriate test for a solicitor’s equitable lien is whether a solicitor provides services (within the scope of the retainer with its client) in relation to the making of a client’s claim (with or without legal proceedings) which significantly contribute to the successful recovery of a fund by the client’. It was decided that although the majority of flight compensation claims are settled without any dispute, the act of advancing the Letter of Claim by Bott & Co, was sufficient to satisfy this test.

The decision of the Court also centred around promoting access to justice, with the logic being that this would be promoted further if Solicitors were comfortable knowing that they had the security of a lien to recover their costs. Lady Arden for the majority stated that ‘effective access to justice has become a foremost animating principle of the equitable lien’.

In their dissenting judgements, Lord Legatt and Lady Rose based their decisions, amongst other reasons, on the fact that there was no real prospect of a dispute in these types of cases.

The result

The fact that the requirement for a dispute does not form part of the test for establishing an equitable lien, opens the door for the application of this case to a greater number of cases, particularly as litigation continues to be driven to become more streamlined. The decision, as acknowledged by Lord Burrows in his judgement, is ‘at the outer limits of a solicitor’s equitable lien’, but nonetheless provides Solicitors with a greater degree of certainty and ensures there should be firms willing to undertake relatively low value work on behalf of Claimants in the future, which can only be a good thing.

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

Further notice from the SCCO on COP assessment delays is now available

Stephanie KayeLeave a comment

On 22 March, the SCCO released a further notice in relation to the ongoing delays with assessments.

In summary, turnaround at present is as follows:

  • Costs Officers are currently being assigned bills of costs received in or after late September.
  • The Admin Team are processing the return of assessed bills received back from the Cost Officers in the last week of February.
  • New filings for assessment received in late January are being considered.
  • Certificate request filings received in mid-March are being received and actioned as acknowledgement of the requests to receive payment before the end of the financial year.

The SCCO have requested that enquiries about the progress of bills which supported paperwork was submitted around or after late September and any e-filings that have not been accepted/rejected that were submitted after late January are limited to aid in the efforts to focus on the reduction of the backlog.

Please see the link below for the full notice released:

Notice-to-COP-customers-21-March-2022-SCCODownload

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

When is a Deputy Entitled to Have a Bill of Costs Assessed by the Senior Courts Costs Office?

Laura SugarmanLeave a comment

Professional Deputies are entitled to take costs for the work that they have carried out throughout a management year. This must be completed in accordance with the rules set by the Court of Protection, Senior Courts Costs Office, and Office of the Public Guardian. The Deputy will most likely opt for their costs to be assessed by the SCCO, and otherwise they could take fixed costs.

When a Deputy is appointed, the Court of Protection make a Court Order outlining the authority of the Deputy. One such authority is the Deputy’s entitlement to be paid in respect of the work done on behalf of P. Under the ‘Costs and expenses’ section of the Court Order, the Costs Judge will outline how the Deputy should be remunerated for their costs, which is typically either fixed costs or detailed assessment by a Costs Officer.

If the Deputy would like to have their costs assessed, as the time they have spent outweighs the amount allowed by fixed costs, then they must have authority within the Order to do so.

Below is an example of a costs clause within an Order that grants authority for the Deputy to receive fixed costs only:

            ‘The Deputy is entitled to receive fixed costs in relation to this application, and to receive fixed costs for the general management of the Protected Party’s affairs.’

As a reminder, some of the key current fixed costs available are set out in Practice Direction 19B of the Court of Protection Rules (2017), and are as follows:

  • £950.00 + VAT for a Deputyship application
  • £1,670.00 + VAT for the first year of general management of P’s affairs
  • £1,320.00 + VAT for second and subsequent years of managing P’s affairs

You can find the full Practice Direction here, if you require further information: https://www.judiciary.uk/publications/fixed-costs-in-the-court-of-protection/

Below is an example of a costs clause within an Order which gives authority for the Deputy to have their costs assessed by the SCCO, or to take fixed costs if they prefer:

            ‘The Deputy is entitled to receive fixed costs in relation to this application, and to receive fixed costs for the general management of the Protected Party’s affairs. If the Deputy would prefer the costs to be assessed, this order is to be treated as authority to the Senior Courts Costs Office to carry out a detailed assessment on the standard basis.’

Where a Court Order provides for detailed assessment of the Deputy’s costs, Deputies may decide to take fixed costs in lieu of detailed assessment, but this is not mandatory. If you have authority for the assessment of costs in your Order and you will exceed the fixed costs amount, we recommend that you opt for assessment instead, as it is very likely that you will recover more than the fixed costs amount.

If a Deputy has incurred more time than allowed under the fixed costs amount when administering P’s affairs, but only has authority to take fixed costs, then they may choose to apply to the Court of Protection for an amended Court Order granting authority to have their costs assessed.

If a Court order does not grant authority for costs at all, then the Deputy can apply to the Court of Protection to amend the Court Order to include a clause for costs. Otherwise, the Deputy would have no authority to charge for the work that they have completed.

For further information, please contact Lewis.Grant@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