TG – 12 June 2024, before Master Whalan.

On 12 June 2024, Stephanie Kaye, Partner at Clarion, represented Kingsley Napley, the Deputy of TG, before Master Whalan, in a hearing concerning three issues:

  1. Time spent authorising payments by the Grade A Deputy, claimed at 3 minutes per payment
  2. Time spent conducting financial reviews in accordance with the SRA, claimed at 6 minutes per task.
  3. Time spent reconciling bank statements and transactions, claimed at 6-12 minutes per statement

The case concerning TG, with Kingsley Napley acting as Deputy, was claimed at £15,834.10 and reduced to £11,413.33 on provisional assessment. By way of background, TG had an estate of over £2.7 million at the time of assessment, income of £325,000 during the period in question and 4 separate bank accounts managed by the named Deputy, Simon Hardy at Kingsley Napley.

Authorisation of payments

The first issue was in relation to authorisation of payments. In the case of TG, the Grade A fee earner claimed 3 minutes for authorising each payment that was made on behalf of TG, in addition to the 3 minutes claimed by the Grade D fee earner arranging the payment. Those payments concerned irregular payments covering TG’s care, therapy, education fees, OT fees etc and were of significant value. The time claimed for this was 5 hours 33 minutes at Grade A which was entirely disallowed on assessment by the Costs Officer and subsequently on re-assessment.

Each item claimed was described as follows in relation to the relevant payment:

Clarion argued that it was the named Deputy’s personal appointment and therefore personal responsibility to authorise these payments as the book stopped with them. In addition, the amounts claimed (6 minutes in total for the payment) were not unreasonable and the transaction itself had been delegated as far as possible, but it was not possible to delegate the authorisation due to the nature of the appointment.

Costs Judge Whalan raised that the reductions made by the Costs Officer were on a matter of principle, but was satisfied that there was no rule preventing the recovery of this work. The work should not have been disallowed in its totally. Judge Whalan stressed that this was on a case-by-case basis and not every payment required a Grade A authorisation. It was for the Deputy to mitigate how often this happened.

He went on to advise that, for example, where the Deputy has agreed to a care plan concerning sessions of therapy at £100 per hour, the Deputy has already agreed to those costs and therefore authorisation was not required every time a payment was due. He was of the same view with payments such as utilities, in that the Deputy has already made a decision about which provider to go with, therefore authorising every payment was not a sustainable approach.

Judge Whalan said that it was not unreasonable to incur this time for irregular payments but was of the view that automatically charging time against every payment was not sustainable. He advised that there needed to be consideration of prior authorisation to payments.

Judge Whalan agreed to allow 3 hours at Grade A against the 5 hours 33 minutes claimed on assessment.

Monthly reviews of the bank accounts

The second issue was in relation to conducting monthly review of the Deputyship account. The time claimed for this was 2 hours 12 minutes undertaken by a Grade C fee earner, with all the time disallowed by the Costs Officer marked as “supervision/overheads” on assessment.

Each entry was claimed as follows:

Clarion argued that this work was not an overhead, but in fact a requirement of the SRA Account Rules and the OPG Deputyship Standards. It was also a fundamental part of the Deputy’s role to manage the finances, including reviewing the accounts.

Judge Whalan agreed and was of the view that this time should not have been disallowed as “overheads”, and commented that the work was a specifically required task. The charge of 1-2 units was prima facie reasonable for this case, however, Whalan made clear that time in excess of 2 units would be considered on a case-by-case basis.

Judge Whalan agreed to allowing the time as drawn in this instance.

Analysing the accounts and preparing reconciliations

The third issue, similarly to the monthly reviews of the Deputyship accounts, concerned TG’s bank accounts. The work however was different in nature as it was in relation to preparing reconciliation statements and analysing the accounts to assess the income and expenditure. This work claimed totalled 5 hours 24 minutes at Grade D.

Each entry was described as follows:

The SRA Account Rules 8.2 and 8.3 and the OPG Deputyship Standard 5a were referred to as requirements for the Deputy to carry out the work. On assessment, the time claimed by the Grade D was reduced by 2 hours 36 minutes.

Judge Whalan commented that it was for the Costs Officer to guard against excessive charges being claimed. Judge Whalan commented that the tasks undertaken were reasonable by the Grade D fee earner and were not unnecessarily high.

Judge Whalan agreed to allow a further 2 hours 27 minutes at Grade D, reinstating the time almost in full.

Judge Whalan would not make a written judgment on this case. Clarion agreed to write a note to share with PDF members on the outcome of the hearing, which has also been shared with Judge Whalan. This note may or may not be circulated to the Costs Officers, but Judge Whalan confirmed that the outcome would be communicated to them.

The latest update on COP assessment delays from the SCCO

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(3) Excessive time spent; and

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

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

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

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

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

 

Update from SCCO on COP assessment delays

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

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

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

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

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

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

Background

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

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

Considerations of the Judge

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

The options available on behalf of MA were;

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

Decision

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

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

J v Luton Borough Council & Ors (2024) EWCA Civ 3

The recent case involved J (the Protected Party) and his lack of capacity in deciding whether he could travel abroad with his family in order to enter into an arranged marriage and engage in sexual relations.

Background

J and his family were planning to travel to Afghanistan to visit their family who resided there. The reason for their travel was to visit family but to also enter into arranged marriages for both J and his sister. In 2022, J’s sister requested support in bringing J’s soon to be wife to the UK. However, a mental capacity assessment confirmed that J did not have capacity to enter into a marriage or have sexual relations.

The case

J’s family made an oral application in order to confirm that J was allowed to travel to Afghanistan with the family. The application was denied on the grounds that there had been a ‘Forced Marriage Protection Order’ placed on J. The Judge agreed to meet with J and collated oral evidence from J’s father, his social worker and J’s sister. The appeal confirmed that the decision would not be overturned due to the clear and significant risks for J and any other British nationals travelling to Afghanistan, this was in respect of the decision made by ‘The Foreign, Commonwealth & Development Office’ against travelling to and from Afghanistan which was targeted towards the general population.

The family of J had appealed the decision in reference to the decision failing to take J’s wishes and values into consideration and that the decision would go against J’s Article 14 rights. However, it was argued that the safety of J and his lack of capacity did not deem him able to engage in a marriage or sexual relations and therefore the decision was in his best interests.

 Conclusion

The Court upheld the decision against J travelling to Afghanistan for the arranged marriage. They had reviewed the risks involved in travelling to Afghanistan and the importance of travelling for J and his family in order to reconnect with J’s family. The Judge also concluded that J’s capacity could possibly be maximised with further education and that further decisions regarding travel should be dealt with in a pre-planned way in the future and would be further reviewed at the appropriate time.

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

COP Costs Case Law

Following submission of a Bill of Costs, the Costs Officer will assess the same to ensure that the costs charged are fair and reasonable, and will often refer to case law to justify the decisions they make with regard to reducing/excluding entries.

Please see below some of the most common case law that is applied on a regular basis by the Costs Officers:

R v Legal Aid Board Ex Parte Bruce (1991)

This case dealt with the issue of two or more fee earners at one attendance.

It was stated that “Solicitors are not to be expected to carry knowledge of all the law in their heads… if the problem is outside the scope of their experience they will wish to discuss it with others who are more qualified… But knowledge of the law, however acquired or recalled, is their stock in trade… 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”. 

Garylee Grimsley (1998)

This case was a continuation of the issues in R v Legal Aid Board Ex Parte Bruce (1991), in which two fee earners at one attendance was reduced on the justification of duplication. As such, it is recommended that two fee earners at an attendance are only claimed in exceptional circumstances and where reasonable to do so, such as where there is a safety risk.

Trudy Samler (2001)

This case dealt with attendances upon the Protected Party and reductions due to an excessive amount of contact.

In the case of Trudy Samler 2001, it was stated “The practice…. is easy for a receiver to justify one visit to the patient each year but that each succeeding visit must be justified…. Could the progress made by the meeting have been achieved more economically by way of a telephone call or correspondence?”.

The case also looks into the costs incurred when contact is instigated by the Protected Party and whether the Deputy should be expected to be paid for such contact. Master O’Hare advised that part of the Deputy’s duty is to prevent such expenses being incurred as it is their responsibility to look after the Protected Party’s financial affairs and to manage contact with clients as best as possible, so expect reductions to excessive contact with the Protected Party or other parties to reflect this decision. If there are high levels of contact with P, this should be justified and explained as best as possible within the narrative of the bill of costs to set out why and what steps were taken by the Deputy to best manage this.

Jamie Walker (2002)

This case dealt with incoming correspondence.

Master O’Hare applied the following provision for time spent perusing incoming correspondence: “Routine letter out and routine telephone calls will in general be allowed on a unit basis of 6 minutes each… The unit charge for letters out will include perusing and considering the relevant letters in and no separate charge should be made for incoming letters”.

This decision also impacted time claimed for arranging payments and considering invoices which are routinely reduced to 3 minutes at Grade D rate on assessment.

Leighanne Radcliffe (2004)

This case dealt with enclosure letters whereby 6-minute claims for letters enclosing invoices were reduced to 3 minutes.

Costs Officer Sainthouse referred to Master O’Hare’s decision which had been made in the matter of Jamie Walker in that the time spent checking the invoice, arranging payment and preparing the appropriate letter/cheque was non-fee earner work.

Smith & Others (2007)

This case dealt with hourly rates and determined what Deputies should be charging hourly.

Master Haworth ruled that Court of Protection work should be allowed in accordance with the guideline hourly rates published by the SCCO.

Yazid Yahiaoui (2014)

This case dealt with the introduction of blended rates and stated that “…where work is being carried out either as a team or by an individual that spans work that would normally be dealt with by a Grade B, C or D fee earner, a blended or enhanced rate may be appropriate…”

Philpott (2015 – unwritten)

This case dealt with record keeping.

In the case of Philpott (2015- unwritten), Master Haworth commented in respect of updating the Protected Party’s financial records, stating “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 avoiding the word ‘updating’ within your work.

Staffordshire v SRK [2016]

This case dealt with welfare work, in particular, work relating to the application for the Deprivation of Liberty Safeguards.

The case stated: “A deputy who agrees to pay for care and treatment of P or for a property for P could not properly ignore the issues (a) whether P was being deprived of his liberty or restrained, and (b) whether that was lawful or needed authorisation under the DOLS or by the making of a welfare order”. As such, this time is always included in the bill of costs. Other welfare work is likely to be reduced or disallowed on assessment.

Tina Jayne Cloughton (1999) and Fuseon Limited (2020)

These cases dealt with delegation of work to a lower grade fee earner.

It was stated that a professional Deputy should delegate suitable tasks to colleagues and employees. The Deputy must be careful not to increase his/her claim for costs by duplicating work done by colleagues.

In 2020, a decision was made in the case of Fuseon Limited which stated that time spend delegating should be fully recoverable. This was a civil decision, and therefore it’s not known whether this same approach will be taken in COP matters. Where delegation has occurred in a COP case which progresses the matter and ultimately saves P money, attempts should be made to recover this time.

The time claimed should be proportionate to the money saved to P, and any work that is delegated should then not require extensive supervision, as this would be considered duplicative.

Understanding the e-bill

If the Costs Officer has applied case law to the Bill of Costs on assessment, they will outline this in Tab Z. Solicitors should be aware of the case law to ensure that they’re not charging the Protected Party unfairly and to understand the reductions applied and whether these are justified.

If you require further information in respect of Court of Protection costs, post-assessment advice or case law, please do not hesitate to contact Ellie Scally.

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

New Fixed Costs in COP – what you need to know about PD19B and the changes

This month, it has been announced that there will be an increase to the fixed costs following a revised publication of Practice Direction 19B, applicable from 1st April 2024 for COP practitioners. This is a welcome increase, given that the previous fixed costs were deemed to be outdated, particularly in light of the recent increases to hourly rates as a result of PLK, GHR 2021 and GHR 2024.

The new fixed costs are as follows:

WORK CARRIED OUTPREVIOUS FIXED COSTS ENTITLEMENT (plus VAT)NEW FIXED COSTS ENTITLEMENT (plus VAT)
Application Work9501204 
1St GM year16702116
2nd and subsequent GM years13201672
Deputy Report265 336
Basic Tax Return250 317
Complex Tax return600 Reasonable/ or three quotes (ACC)
ConveyancingMin 400 max 1670 Reasonable /or three quotes (ACC)
Interim paymentsUp to 75% of WIP, raised by way of three quarterly billsUp to 75% WIP for the year or 75% of OPG105 estimate. whatever is lower. 

The increases to most of the fixed costs represents a 26% rise from the previous available figure.

As well as the increase to fixed costs, the threshold for hardship cases has also increased. This was previously £16,000 but this has now increased to £20,300. Therefore, if P has less than £20,300 in assets, the Deputy will be unable to have their costs assessed but instead will be limited to 4.5% of P’s assets.

The changes to interim payments is a welcome shift which will help cash flow for firms, as payments on account are not limited to quarterly, therefore billing monthly may be preferred so long as the OPG105 estimate is in line with the WIP incurred.

This month has also seen an announcement regarding the increase in court fees. Following a consultation, the government has decided to proceed with increases of 10% to 172 of the 202 fees that were proposed in the initial consultation. This will directly impact COP Practitioners. The court fee for requesting a detailed assessment has increased from £87 to £96, the court fee to appeal against a COP costs assessment decision has increased from £70 to £77 and the court fee for a request to set aside a default costs certificate has increased from £65 to £72.

There has also been an increase in court fees for Court of Protection applications. These have increased from £371 to £408. The court fee for appealing has increased from £234 to £257.

It is incredibly important that COP practitioners update their client care paperwork to reflect the new fixed costs if they are sought, in addition to the new court fees.

If you have any questions about any of the above, please feel free to contact Laura Sugarman at Laura.Sugarman@clarionsolicitors.com

The Court of Appeal finds solicitors’ time attending rehabilitation case management meetings is recoverable in principle

The anticipated Court of Appeal judgment of Hadley v Przybylo [2024] EWCA Civ 250 has been handed down this morning. The panel, consisting of Lord Justice Coulson and Lord Justice Dingemans (‘Lord Justices’), considered whether the cost of a fee earner’s attendance at rehabilitation case management meetings was irrecoverable in principle as legal costs.

Background

The proceedings concerned a road-traffic accident that caused the Claimant to suffer catastrophic injuries including numerous broken bones, damage to his spleen, bladder, kidney and lungs, a traumatic brain injury, permanent brain damage and sub-arachnoid haemorrhaging. Following the accident, the Claimant underwent rehabilitation at numerous facilities and once a Court of Protection order was in place, the Claimant was discharged into the community with a team of carers that provided 24-hour care.

First Instance Judgment

The cost budget put forward on behalf of the Claimant sought £1.18 million in costs.

Master McCloud ordered that the parties engage in ADR in respect of the future costs. Following ADR, only the “Issues and Statements of Case” phase remained in issue, in which £68,400 was claimed for estimated costs.

The Defendant challenged the costs claimed in this phase on the basis that a solicitor’s attendance at case management meetings with medical and other professionals during management of the Claimant’s rehabilitation needs, and at meetings with professional deputies (said to be part of creating a Schedule of Loss) were not in principle recoverable as costs of the litigation.

Master McCloud considered whether such attendances were progressive. She determined that they were not and that the costs were not capable of being recovered inter-partes.

Master McCloud gave permission for a ‘leapfrog’ appeal to the Court of Appeal.

Court of Appeal Judgment

The Claimant appealed Master McCloud’s finding and the Court of Appeal were tasked with determining whether a solicitor’s time attending rehabilitation case management meetings and the like were recoverable in principle as inter-partes costs.

The Court of Appeal considered that there were two issues:

  1. Is attendance at rehabilitation case management meetings recoverable in principle?
  2. If it is, are there any limits that this court should place on its recoverability at this stage, or should those be addressed on assessment?

The Lord Justices held that this element of the costs was recoverable in principle and found that:

the Serious Injury Guide and the Rehabilitation Code both envisage the possible involvement of a solicitor in ongoing rehabilitation meetings. Whilst the extent of them, and the amount of necessary attendance, is a matter for the assessment of the cost budget or detailed assessment, both of those guides would clearly indicate that, as a matter of principle, this was a recoverable category of costs.”

The Lord Justices stated that:

“It would be wrong to decide that the costs of the solicitors’ attendance at rehabilitation case management meetings are always irrecoverable. Equally, it would be wrong for the claimant’s solicitor to assume that routine attendance at such meetings will always be recoverable. It will always depend on the facts.”

Whilst finding that the costs of attending rehabilitation case management meetings are recoverable in principle, these costs are of course subject to reasonableness and proportionality. The Lord Justices warned that there was no blanket or default entitlement to attend rehabilitation case management meetings routinely.

Ellena Hunter is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

The latest update from the SCCO as to their delays.

We are all aware of the delays at the SCCO, but unfortunately that bill you submitted in August 2023 is still a while off being assessed and received back.

What are the delays?

Currently the Costs Officers are being assigned bills of costs for which supporting papers were received towards the end of April 2023.

The admin team are currently sending out bills returned to them during the beginning of March 2024.

With regards to e-filings that have been submitted, but not yet accepted or rejected, the SCCO are currently looking at filings submitted towards the beginning of November 2023. They are dealing with FCC filings submitted during the end of February 2024.

All together from filing the bill with the SCCO, to having it accepted, assessed and returned you can expect to be waiting around 15 months to receive your bill of costs back.

What can you do in the meantime?

Ensure your interim payments are up to date. As a Court of Protection Deputy, under Practice Direction 19B, you are entitled to bill up to 75% of your WIP incurred during the management period, with the remaining 25% to be taken once the FCC has been obtained.

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

You can contact the SCCO directly at scco@justice.gov.uk with any queries, alternatively speak to your Cost Draftsman who may be able to assist. If you are contacting the SCCO directly please make sure you have the SC reference to hand for a quicker response.

If you have any questions on the information above, or any general queries please get in touch at ellie.howard-taylor@clarionsolicitors.com.