SCCO Updates Filing Guidance for Court of Protection Bills

March 18, 2026 Leah MorrisLeave a comment

The Senior Courts Costs Office (SCCO) has earlier this week issued revised guidance on filing supporting papers for Court of Protection bills, coming into effect on 20 April 2026. These updates aim to streamline the assessment process and improve efficiency for both practitioners and Costs Officers.

The SCCO continues to support two methods for submitting supporting documents: digital bundles provided via the Document Upload Centre (DUC) and physical files of papers sent in the post or DX. A summary of the latest guidance is set out below.

1) Digital Bundles via the Document Upload Centre (DUC)

The Document Upload Centre (DUC) allows users to submit supporting papers electronically and is the SCCO’s preferred method, provided submissions follow the required format.

It is important to note:

The DUC is only for supporting documents
Key documents, including the bill of costs, N258B and court orders, must still be filed via CE-File in the usual way
To access the DUC, users must request a link by emailing the SCCO

In terms of formatting, bundles must be in PDF format only. File names should include the SCCO reference number, the Protected Party’s surname, and the billing period or case type (for example, statutory will or property sale). The SCCO also find it helpful if an indication of the bill type is included within the file name, such as general management with the relevant period dates, so it is recommended that this is included.

Where possible, a single bundle should be submitted. If multiple files are necessary, these should be clearly labelled with the relevant date ranges rather than uploading individual documents separately.

Documents must be arranged in chronological order (oldest first), with key documents placed at the beginning of the bundle. These include:

The OPG102 and OPG105
Client care letter
Disbursement evidence
Counsel fee invoices

The level of detail within documents remains important. Emails and file notes should clearly show dates and times, with correspondence identifying both sender and recipient. File and attendance notes must also record the fee earner completing the work and the time claimed.

To assist Costs Officers in locating documents quickly, the SCCO recommend:

Including a detailed index or bookmarks with clear dates and descriptions so items can be easily identified and cross-referenced against the bill of costs
Adding hyperlinks to documents where possible
Avoiding duplication of documents or email chains

In terms of timing:

For existing cases: upload at the same time as filing the bill (once the SCCO reference number is available)
For new cases: upload after receiving confirmation of the SCCO reference number (e.g. SC-2025-COP-001234)

2) Physical Paper Filing

Firms can still submit hard copy bundles by post. While digital filing is encouraged, it is not mandatory.

If submitting papers physically, they should be sent to:

Senior Courts Costs Office
Thomas More Building
Royal Courts of Justice
Strand
London
WC2A 2LL
DX: 44454 Strand

Many of the same principles apply to paper bundles as to electronic ones. Files should be clearly labelled with the SCCO reference number, the Protected Party’s name and the billing period or case type, and documents should be organised in chronological order.

Key documents should be placed at the front of the bundle (or the first bundle if multiple are submitted), including:

The OPG102 and OPG105
Client care letter
Disbursement evidence
Counsel fee invoices
A copy of the e-filing acceptance notice, including return details
Where multiple boxes or bundles are required:
Label them sequentially (e.g. Box 1 of 2)
Arrange documents chronologically across all boxes and bundles
In terms of timing:
Papers should be sent as soon as possible after CE-File acceptance
They must be submitted within 28 days

Mandatory Filing Notification

Each time a bill is submitted via CE-File, you must clearly state how you intend to file supporting documents. This should be included in the “filing comments” by confirming either ‘paper’ or ‘DUC’. Failure to include this information may result in the filing being rejected.

Final Thoughts

These updates from the SCCO reflect a continued move toward digital efficiency while still accommodating traditional filing methods.

For practitioners, the key takeaway is simple: clarity, organisation, and compliance with formatting rules are essential. Adopting the DUC where possible, and doing so correctly, will help avoid delays and ensure a smoother assessment process, particularly given the continued delays and significant turnaround time for receipt of assessed bills, which remains in excess of a year at present.

For further guidance or to request DUC access, contact the SCCO directly at scco@justice.gov.uk.

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

Understanding the Role of Each Grade Fee Earner in Court of Protection: A Breakdown of Responsibilities

March 3, 2026 Leah MorrisLeave a comment

Navigating the complexities of Court of Protection requires a clear understanding of the roles and responsibilities of the various fee earners involved in the process. From apprentices and paralegals through to senior partners, each grade of fee earner plays a vital part in managing and overseeing costs, ensuring that both legal obligations and client needs are met efficiently. In this blog, we will explore the specific tasks and duties that correspond to each grade of fee earner, offering insight into how their work contributes to the overall success of Court of Protection cases and the accurate management of associated costs.

Grade D

Grade D fee earners refer to trainee solicitors, paralegals, and other fee earners, such as administrative assistants. These fee earners are not qualified lawyers.

Tasks commonly undertaken by Grade D fee earners include the following:

Arranging payments
Reviewing invoices
Considering incoming correspondence
Liaising with the DWP in relation to benefits
Preparing standard forms, such as banking forms
Amending standing orders
Considering bank statements
Attending the property for insurance visits.

These tasks are undertaken by Grade D fee earners to assist with the Protected Party’s daily life. Grade D fee earners will often be delegated tasks by more senior fee earners or seek instructions to reduce the costs incurred to the Protected Party. The tasks carried out usually require minimal specialist knowledge and consist of simpler duties to enable the day-to-day management of the case.

Grade C

Grade C fee earners consist of solicitors or legal executives and fee earners of equivalent experience. These fee earners are usually qualified, however, senior paralegals can also be categorised as Grade C based on extensive Court of Protection experience.

Tasks commonly undertaken by Grade C fee earners include the following:

Preparing the annual Deputyship report
Preparing benefits forms
Considering the insurance position
Reviewing care plans
Drafting COP forms

Grade C fee earners usually have regular day-to-day conduct of the file and will complete tasks to reduce the costs incurred to the Protected Party. However, these tasks may be slightly more complex and require further specialist knowledge than unqualified persons (Grade D) to enable completion. In practice, Grade C fee earners are often the backbone of the day-to-day management of the case. They ensure that routine matters such as reporting, correspondence, and documentation are handled effectively while providing intermediate-level legal support. Their ability to balance both practical and legal considerations helps keep costs manageable while still meeting legal standards.

Grade B

Grade B fee earners include solicitors and legal executives who have been qualified for a minimum of four years.

Tasks commonly undertaken by Grade B fee earners include the following:

Liaising with P and their family as the main point of contact
Preparing budgets
Preparing Witness Statements
Liaising with the care home regarding P
Making simpler best interests decisions

Claiming Grade B in cases is challenging due to the complexity of tasks to be undertaken, requiring extensive legal knowledge that would necessitate a more senior fee earner than Grade D or C. However, the tasks are not quite complex enough to warrant the expertise of a Grade A fee earner, such as the Deputy. As there is no exhaustive list of specific tasks, it can be difficult to justify why a Grade B fee earner was required to conduct the work in the place of a lower grade fee earner. Grade B fee earners take on a supervisory role in cases, often overseeing the more detailed aspects of the case while ensuring compliance with Court of Protection requirements. Their work bridges the gap between the more routine tasks carried out by Grade C or D fee earners and the high-level strategic oversight of a Grade A fee earner.

Grade A

Grade A fee earners consist of solicitors and legal executives who have been qualified for over 8 years.

Tasks commonly undertaken by Grade A fee earners include the following:

Certifying and signing documents
Approving payments
Making complex and costly best interests decisions
Delegating tasks
Attending on P for the annual Deputy visit
Attending on the IFA
Reviewing investment and portfolio reports

Grade A fee earners have minimal overall day-to-day navigation of the matter due to the higher hourly rate charged and therefore the additional costs that would be incurred to the Protected Party. This is because they are focused on providing specialised expertise or high-level legal advice rather than managing the day-to-day administrative tasks and procedural aspects of a case. Their role is usually more strategic, handling complex legal issues and ensuring that the case aligns with broader legal principles. In practice, Grade A fee earners are responsible for making decisions with long-term implications, including the management of assets, complex best interests decisions, and compliance with legal requirements. As a result, the administrative tasks, client communication and file management responsibilities often fall to more junior staff, such as Grade C fee earners or paralegals, who are responsible for maintaining the case on a practical level. This division allows Grade A fee earners to focus on their area of expertise while delegating routine tasks to those with less specialised experience.

In conclusion, understanding the specific responsibilities of each grade fee earner in Court of Protection cases is essential for both managing costs effectively and ensuring the protection and care of vulnerable individuals. From the foundational tasks handled by junior fee earners to the more complex responsibilities undertaken by senior professionals, each role plays a vital part in maintaining the smooth operation of the case. By clearly outlining the tasks and responsibilities across different grades, legal teams can work more efficiently, ensuring that every aspect of the case is addressed with the appropriate level of expertise. This collaborative approach helps to balance both legal and financial obligations, ultimately benefiting the clients who rely on the Court of Protection system for support and guidance.

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

PI Trusts and Statutory Care Funding: Clarity for Deputies

February 19, 2026 Ella WilkinsonLeave a comment

The High Court’s recent decision in CGT, R (On the Application Of) v West Sussex County Council [2026] EWHC 293 (Admin) provides important clarity for deputies managing personal injury trusts. The case arose from a judicial review challenge to the local authority’s decision to refuse to fund CGT’s care needs from July 2024 onwards and to seek reimbursement of funding provided since 2020.

By way of background, CGT was born in 1994 and suffered a catastrophic brain injury at around three months old, leaving him with severe cognitive impairment, visual impairment, epilepsy and other lifelong disabilities. He requires daily care and has lived in supported accommodation since 2013. He lacks capacity to manage his financial affairs, and his mother was appointed as his property and financial affairs deputy by the Court of Protection in 2011.

In 2012, the Criminal Injuries Compensation Authority (CICA) awarded him more than £3.5 million, including over £2.6 million specifically for future care. The award was conditional on the funds being placed into a discretionary trust for his benefit, with the Official Solicitor acting as trustee.

The local authority later refused to continue funding CGT’s care, arguing that capital in the personal injury trust counted as available resources and that ongoing public funding would amount to double recovery. The judicial review succeeded. The court rejected both arguments, holding that the decisions to cease funding and demand repayment were unlawful. It also confirmed that capital held in a properly constituted personal injury trust must be disregarded in full when assessing care funding under the Care Act 2014 and surrounding regulations.

For professional deputies, the implications are practical. A trust established from personal injury compensation does not reduce P’s statutory entitlement to care funding, even where the trust contains sums identified for future care. Deputies can manage P’s affairs in the knowledge that the existence of trust capital should not trigger withdrawal of public funding or retrospective recovery.

The judgment also narrows the reach of double recovery arguments in this context. Local authorities cannot rely on that principle to refuse or claw back statutory care funding. If duplication concerns are to be addressed, they belong at the point of settlement, in the structure of the award, or through Court of Protection oversight and not within the eligibility assessment itself. Deputies should ensure that trust documentation reflects P’s needs and that any undertakings or arrangements from prior deputies are understood, but should not assume those arrangements alter the statutory framework.

The decision is also a reminder of process. Trust capital is disregarded, but local authorities remain entitled to request information about the financial position. Deputies should provide what is necessary and accurate, without inviting a reinterpretation of the statutory test.

In practical terms, the judgment reinforces the deputy’s role in safeguarding compensation awards while preserving access to statutory care funding. Properly structured personal injury trusts remain effective protection, and local authority discretion does not displace the regulations.

If you have any questions, please get in touch with Ella Wilkinson (Ella.Wilkinson@clarionsolicitors.com) who is an Associate in the Costs & Litigation Funding Team at Clarion Solicitors, specialising in Court of Protection costs.

Fixed Costs and Remuneration of Professional Deputies

July 23, 2025July 24, 2025 Laura SugarmanLeave a comment

On 18^th June 2025, the Office of the Public Guardian issued new guidance in relation to fixed costs and remuneration of professional Deputies. The purpose of the guidance is to set out the general principles regarding fixed costs and the Public Guardian’s position on issues relating to fixed costs.

As you will be aware, rule 19.13 of the Court of Protection Rules confirms that Deputies can be remunerated for costs they incur when performing their duties as Deputy. The Court may order that the Deputy is allowed to take fixed costs. These are outlined in Practice Direction 19B (PD19B), which was recently updated, on 1^st April 2024. Whereby the management period ended before 1^st April 2024, the rates set out in the previous PD19B would apply, however if the period covered by the fixed costs ends on or after 1 April 2024, the rates outlined in the latest version of the Practice Direction apply. Generally speaking, a management period would run on an annual basis, however this guidance confirms that if the period is less than a year (for example if there is a change in Deputy or P passes away) the fixed costs claimed should be apportioned accordingly.

It is important to ensure that if you want to have your costs assessed but the Court Order only allows for fixed costs, the Deputy will not be allowed to take any costs higher than fixed costs as per the case of The London Borough of Enfield v Matrix Deputies Ltd & Anor. Our advice would be to apply to the Court of Protection to have the costs clause varied to allow for the costs to be assessed in these circumstances.

The guidance also reiterated the definition of net assets as per the case of Penntrust Ltd v West Berkshire Council & Anor. This case confirms that net assets is the total assets minus total liabilities. This includes any property owned by P, regardless of if they are currently residing in the same.

Whereby P has net assets of less than £20,300, the Deputy will not be permitted to have their costs assessed. Instead, they can take an annual management fee not exceeding 4.5% of P’s assets. The guidance also confirms that if there is a pending settlement which would take P’s assets significantly above £20,300, the Deputy should apply to the Court of Protection to seek authority to delay taking costs until the settlement funds have been received. This is a move away from previous guidance which has stated that the Deputy can only have costs assessed if P has assets above the threshold on the anniversary of the Court Order.

Further guidance has now been issued in relation to tax returns. Fixed costs can be taken for the completion of a basic tax return and complex tax return. It has been difficult to determine what would account for a complex tax return and therefore this guidance is very welcomed. The guidance states that:

‘PD 19B defines a basic tax return to cover cases where P’s income is derived primarily from bank or NS&I interest and taxable benefits, discretionary trust or estate income. A complex tax return may be defined as one which also includes income form more complex investments including stocks, shares and bonds, rental property, business income and foreign property. Public authority deputies may charge up to £89 for a basic tax return as set out at paragraph 18 of Practice Direction 19B to include bank or NS&I interest and taxable benefits and may charge an amount not exceeding £89. They may charge P for the completion of more complex tax returns as a specialist service P would be expected to play for if they retained capacity.’

Guidance has also been provided in the event of P’s death. The Public Guardian recommends that the Deputy agrees any costs with the personal representative of the administrator of P’s estate. Further, the guidance states that the Deputy is not permitted to take final costs after P’s death, if the estate has not yet been settled.

If you have any questions, please get in touch with Laura Sugarman for further information – laura.sugarman@clarionsolicitors.com.

Updated practice guidance released by the OPG and SCCO – an important reference point for professional deputies!

May 30, 2025 Ella WilkinsonLeave a comment

On 28 May 2025, the good practice guidance previously issued by the Office of the Public Guardian (OPG) and the Senior Courts Costs Office (SCCO) was updated. This guidance exists to assist professional deputies in respect of their costs estimates, preparing and submitting bills for assessment and in understanding what work can be claimed and recovered. The vast majority of the contents remain similar to the original guidance released by the OPG and SCCO dating back to 2016 in respect of the expectations from professional deputies in regards to general good practice and the SCCO’s approach to assessment, however more recent developments have now been factored in such as the use of the E-bill and the CE File system, the case of ACC and Others, the latest stance regarding post death costs and the increased hardship threshold.

This blog summarises the key points raised, to ensure that professional deputies continue act in P’s best interests and comply with the requirements of the OPG, SCCO and Court of Protection. Importantly, the guidance issued is not intended to replace existing provisions such as the relevant Civil Procedure Rules, Practice Direction 19B (supplementing Part 19 of the Court of Protection Rules 2017), the Mental Capacity Act (2005) Code of Practice, and the OPG professional deputy standards.

Principles of Good Practice

Professional deputies are entitled to claim reasonable and proportionate costs. Key expectations include:

Aligning costs with the value of P’s estate and the work involved
Delegating tasks to appropriately graded staff
Acting transparently and always in P’s best interests
Evaluating whether their continued role remains necessary as P’s situation stabilizes
Where deemed appropriate, deputies should be open and transparent about their charges with P’s relatives

Deputies who fail to follow this guidance may need to justify their decisions, and the OPG may take action, including applications to remove a deputy where concerns arise.

Costs Estimates

The OPG105 must be submitted with the annual deputyship report, and in most cases it should take no more than 30 minutes to complete
If billed costs exceed the original costs estimate by 20% or more, deputies must explain the discrepancy
Significant changes in P’s circumstances should be reported to the OPG if they will impact costs

Assessment of General Management Costs

The SCCO’s role is to assess whether claimed costs are reasonable and proportionate. Their key considerations include:

Hourly Rates: these must generally align with the relevant SCCO Guideline Hourly Rates (except in the most exceptional circumstances)
Delegation: routine tasks, such as arranging payments or bank reconciliations, should be completed by administrative staff or Grade D fee earners at best. In addition, when reviewing time claimed for delegation, the SCCO will consider if the time clamed was reasonable, proportionate, progressive and that it serves to reduce costs
Home Visits & Contact: usually, only one home visit per year is allowed unless justified
Welfare Work: these cannot be claimed under property and affairs general management costs unless the Court of Protection gives permission
Overheads: routine supervision, internal communication, and basic administrative tasks are considered overheads and are not generally not recoverable
Payment of Bills: three minutes will be allowed for payments per instance, and no further time is usually allowed for amending records to reflect payments made or advising a party of a payment processed to them
Financial Beauty Parades: generally, only one senior fee earner will be allowed on assessment for attending these meetings
File Notes: if no or little documentary evidence is supplied in support of the bill and/or particular items of work claimed, it is likely that the SCCO will disallow the costs claimed
Litigation Costs: the SCCO will disallow costs which could be claimed within the context of ongoing litigation
Draftsman’s Fees: a Grade D rate will be allowed for the preparation of bills of costs, unless in exceptional circumstances

ACC & Others Judgment

Where work falls outside of the scope of general authority for the management of P’s property and financial affairs, a professional deputy may need to apply for further authority in respect of this work and the associated costs as per ACC & Others. The full judgment can be seen here: ACC & Ors ( property and affairs deputy ; recovering assets costs for legal proceedings) – Find Case Law – The National Archives, and we have also previously prepared a blog summarising this and the practical implications for deputies which can be found here: ACC & Others – A Useful Recap – Clarion Legal Costs

Submissions of Bills of Costs & Supporting Documentation

Bills of costs should ideally be submitted annually for assessment, as close to the end of the management year as possible
Bills covering less than a year can be submitted where there has been a transfer of deputyship and the deputy intends to realign the management period dates with the new order. If this transfer is internal within the same firm, such bills must span at least six months of work unless in exceptional circumstances
Bills must be submitted via CE file, and can either be the traditional bills of costs set out under Practice Direction 47 CPR Part 47, or in the newer E-Bill format
The short form bill format is required where costs claimed are under £3,000.00 (excluding VAT and any disbursements claimed)
Supporting documents submitted alongside the bill should include the OPG105, deputyship report (OPG102/103), any relevant Orders made by the Court of Protection providing authority for work falling outside of the general authority, as well as evidence in support of the hourly rates claimed (client care paperwork)

Post-Death Costs and Hardship

On P’s death, the deputyship will come to an end and the jurisdiction of the Court of Protection will cease. Costs incurred post-death are not assessable by the SCCO. The deputyship order however will continue to authorise detailed assessment of costs incurred during P’s lifetime, if these cannot be agreed with the executor of the estate. If the professional deputy is also appointed as executor, a potential conflict of interest arises and a bill of costs should be submitted to the SCCO for assessment.

Where P’s estate has a value of less than £20,300.00, deputies must follow specific directions set out under Practice Direction 19B with regards to hardship. This states that in such circumstances, ‘the professional deputy for property and affairs is not permitted to apply for assessed costs; instead they may take an annual management fee not exceeding 4.5% of P’s net assets on the anniversary of the court order appointing the professional as deputy’.

Summary

The guidance aims to encourage fairness, consistency, and clarity in the way the costs of professional deputies are managed and assessed. For deputies, it reinforces the importance of transparency, efficiency, and the diligent management of P’s affairs.

Professional deputies are urged to familiarise and refresh themselves with the full guidance and relevant existing provisions to ensure that they continue to act in line with best practice expectations and requirements.

If you would like to review the guidance in full, this can be found at: Professional Deputy Costs – GOV.UK

W v P [2025] EWCOP 11 (T3): A Recent Decision in the Court of Protection

April 25, 2025 Lydia MarshallLeave a comment

The case of W v P [2025] EWCOP 11 (T3) is a significant decision from the Court of Protection that sheds light on key aspects of mental capacity law and decision-making in vulnerable individuals. The case touches upon the legal principles underpinning the Mental Capacity Act 2005, particularly regarding the balancing of an individual’s rights and the need for protective intervention.

Background

W v P involved a complex dispute over whether P should be subjected to certain types of care and treatment under the Mental Capacity Act 2005. The issue at hand was whether the Court should authorize certain actions that would otherwise infringe upon P’s rights.

P had been diagnosed with a condition that severely impaired their mental capacity, affecting their ability to make decisions regarding their care and welfare. A key aspect of the case was whether P could make decisions about their daily living arrangements and, if not, who should have the authority to make these decisions on their behalf.

The applicant in this case, W, was seeking to secure specific decisions about P’s welfare and medical care. The court had to examine whether those decisions were in P’s best interests and whether they adhered to the legal requirements under the Mental Capacity Act.

Key Legal Issues

Best Interests Test: Central to the case was the application of the best interests Under the Mental Capacity Act 2005, any decision made on behalf of someone who lacks capacity must be based on what is in their best interests. This means the court must consider the person’s wishes, feelings, beliefs, and values where possible, and take into account their prior wishes and any relevant evidence.
Autonomy vs Protection: The court considered the balance between respecting an individual’s autonomy and ensuring protection for those who are vulnerable. The court was tasked with determining the extent to which P’s rights to autonomy could be limited in favour of ensuring their safety and well-being.
Lack of Capacity: P’s lack of capacity to make decisions was central to the case. The court had to assess the degree to which P was unable to understand or make decisions about their care and treatment.
Role of Family Members: The role of family members was also critical in this case. W, as the applicant, sought to ensure that the decisions made on P’s behalf were in line with what P would have wanted. However, the court also had to weigh in on whether these decisions were truly in P’s best interests, even if they conflicted with the views of family members.

Court’s Decision

The Court of Protection ultimately decided that the care and treatment decisions proposed by W were appropriate, taking into account expert evidence, the views of healthcare professionals, and what could be determined about P’s past wishes. The judgment emphasized the importance of involving those close to P, such as family members, but also that the court must ultimately make decisions based on the best interests of the individual to ensure personal freedom is not infringed upon unless absolutely necessary.

Implications for the Future

The case of W v P reinforces that while autonomy is a key principle, there are circumstances where individuals may need protective measures to safeguard their well-being. It is important to consider the balance between protecting vulnerable individuals and respecting their autonomy when making such decisions. This case also serves as a vital example for legal professionals, carers, and healthcare providers, highlighting the complexities involved in making decisions for those who lack mental capacity.

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

Oakwood Solicitors Ltd v Menzies [2024] UKSC 34

November 18, 2024November 18, 2024 Katie SpencerLeave a comment

Case overview

The case of Oakwood Solicitors Ltd v Menzies [2024] UKSC 34 explores a client’s right to request an assessment of legal fees, focusing on the interpretation of “payment” in Section 70(4) of the Solicitors Act 1974. The Supreme Court ultimately ruled in favour of the client, reinforcing protections that allow clients to review and negotiate billed costs.

Initial Proceedings

The Respondent, Oakwood Solicitors, were instructed by the Appellant, Menzies, following his involvement in a Road Traffic Accident, under a Conditional Fee Agreement.

The claim settled for £275,000, after which the Respondent issued a ‘Final Statute Bill’ outlining the fees incurred throughout the case, totalling £73,711.20. The Respondent deducted from the damages an amount to cover the shortfall in costs after deducting costs recovered from the Defendant, as agreed in the CFA.

On 1 April 2021, the Appellant initiated proceedings to request an assessment of the final bill. To determine whether the Appellant could bring these proceedings, the Costs Judge assessed the date on which payment of the bill was made. The Costs Judge decided that payment had occurred over 12 months before the assessment (apparently taking the date as being when the Final Statute Bill was delivered).

Legal Issue

Section 70(4) of the 1974 Solicitors Act states:

‘The power to order assessment conferred by subsection (2) shall not be exercisable on an application made by the party chargeable with the bill after the expiration of 12 months from the payment of the bill.’

Applying this rule, as the payment of the bill occurred over 12 months prior to the assessment application, the Appellant was barred from seeking an assessment.

Appeal to the High Court

The Appellant appealed to the High Court, which allowed the appeal on the grounds that there had been “no sufficient settlement of account” to warrant treating the deduction as payment under Section 70(4).

Appeal to the Court of Appeal

The Respondent then appealed to the Court of Appeal, which found that, because the Appellant had agreed in the CFA to the deduction of monies and had been sent a Final Statute Bill no further agreement on the bill amount was necessary. The Court of Appeal allowed the appeal.

The Appellant subsequently appealed to the Supreme Court.

Supreme Court Decision and Reasoning

Lord Hamblen delivered judgment on the matter, considering several key points to reach a conclusion. Section 70 was concerned with the right to assess solicitors’ bills of costs with a focus on the proper amount to be charged, having regard to whether costs have been reasonably incurred and are reasonable in amount. The client needed an opportunity to consider the bill and decide to what extent it should be paid. Section 70 envisages payment after the delivery of the bill and rather than by delivery of the bill.

The right to have the bill assessed is intended to protect the client’s interests, which are compromised if the client is not given the opportunity to consider the bill of costs. Consideration of the meaning of ‘payment’ in Section 70(4) and previous authorities supported the Appellant’s case.

In considering the requirement for a settlement of account, the cases of Re Bignold (1845) and Harrion v Tew (1987) were referenced, both of which were found to support the Appellant’s position that an agreement to the bill is necessary. Lord Hamblen said, “the authorities show a long established understanding as to what payment by deduction or retention requires…both generally and with specific reference to section 70…The need for a settlement of account has been consistently stated…This requires an agreement to the sum taken or to be taken by way of payment of the bill of costs.” Therefore, there needed to be agreement as to the amount to be paid in respect of the bill of costs and mere delivery of the bill was not sufficient.

Lord Hamblen felt that the Respondent’s submissions as to practical implications of this conclusion were overstated, in any event these could not dictate the correct interpretation of ‘payment’ in the legislation, and the need for agreement by way of a settlement of account was long established.

Consequently, the appeal was allowed which restored Bourne J’s order for assessment.

Katie Spencer is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Getting it Right – CPR 2.8 and calculating dates for service

November 8, 2024November 8, 2024 Joanne ChaseLeave a comment

Calculation of Time

The recent case of Corfield v Howard [2024] EWHC 2727 (Comm) is a reminder of the importance of calculating time for service and filing of Court documents.

In the above matter, the Defendant applied for declaratory relief as to the meaning of enforcement of a settlement agreement scheduled to a Tomlin order. In accordance with a consent order, skeleton arguments were due to be served and filed one clear day before the hearing. The Court staff noted that no skeleton arguments had been filed and served by the due date. Their time was therefore taken up identifying the breach and writing chasing letters to the parties’ representatives. Both parties subsequently filed their skeleton arguments. HHJ Judge Davis-White KC sated that he did not need to enquire further as to where the fault lay, however, he said that Counsel and instructing solicitors should liaise in good time to ensure that the required skeleton argument can be prepared by Counsel by the required time.

The Judge went on further to state that:

“the delivery of skeleton arguments in accordance with guidance of court order is essential for the efficient running of the courts”. Although the Judge was able to proceed with the hearing on this occasion, the Judge did warn that “the court is likely to impose sanctions in cases as egregious as these”.

Although there were no sanctions in this case, it serves as a timely reminder that compliance with court imposed deadlines is mandatory and, in an appropriate case, the Court may impose sanctions for a failure to comply. Getting it wrong can be costly, and, in the extreme, fatal to the case.

The Rules

CPR Part 6 is at the heart of the rules relating to service of documents, and Practice Direction 6A relates to service within the United Kingdom.

CPR 2.8 sets out how we go about calculating time, and parts 2.8 (2) and (3) specifically explains the clear day rule which often catches practitioners out:

“(2) A period of time expressed as a number of days shall be computed as clear days.

(3) In this rule ‘clear days’ means that in computing the number of days –

(a) the day on which the period begins; and

(b) if the end of the period is defined by reference to an event, the day on which that event occurs are not included.”

CPR 2.8 (4) continues to explain that:

“Where the specified period –

(a) is 5 days or less; and

(b) includes –

(i) a Saturday or Sunday; or

(ii) a Bank Holiday, Christmas Day or Good Friday,

that day does not count”

Examples

Where a CMC is listed for 28 March and the Court orders bundles to be filed no later than 7 days before the CMC, the last date for filing is 20 March.

Alternatively, where a witness statement must be served 5 days before a hearing listed on Tuesday 18 March, the deadline for service is Monday 10 March.

Interestingly, CPR 44 practice direction 9.5 (4) provides different rules for the filing and service of a statement of costs before a fast-track trial and other hearings;

“The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought as soon as possible and in any event –

(a) for a fast track trial, not less than 2 days before the trial; and

(b) for all other hearings, not less than 24 hours before the time fixed for the hearing.

Where a fast track trial is listed for 1.30pm on the first Tuesday after Easter, taking into account the clear day rule and CPR 2.8 (4), the statement of costs must be filed and served no later than the Tuesday before. Wednesday and Thursday provide the 2 clear days, with Good Friday, Easter Saturday, Sunday and Monday not counting. Therefore, in this instance, 7 days before the hearing – suddenly the 2 days turn into 7 days.

However, if it were an interim application hearing listed for 1.30pm on the first Tuesday after Easter, the statement of costs must be filed and served no later than 1.30pm on Maundy Thursday. What is crucial here is that this rule provides for hours and not clear days. Therefore, filing and serving at 1pm on Maundy Thursday would be perfectly acceptable despite it being within no clear days of the hearing. The clear day rule does not apply when the rules specify the deadline as a number of hours rather than a number of days.

Conclusion

Being aware of this subtle difference could prove to be a very useful tool for any practitioners who are under time constraints for the filing and service of Court documents. A note of advice – if in doubt then check the rules. The rules regarding filing and service can easily catch you out, particularly bearing in mind that there are also rules surrounding the method of filing and service, i.e. service by email, fax etc., in addition to those relating to timing.

Joanne Chase is a Legal Director in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

ACC & Others – A Useful Recap

October 15, 2024 Leah MorrisLeave a comment

Introduction

The case of ACC & Others [2020] EWCOP 9 was a landmark judgment by HHJ Hilder in the Court of Protection that clarifies the authority required by Deputies to obtain legal services and the management of conflicts of interest.

This judgment arose from three separate proceedings involving Deputies connected to the law firm Irwin Mitchell. In two of these cases, the Deputy was the Irwin Mitchell Trust Corporation and in the third case the Deputy was a partner in the firm. Notably, the Deputyship Orders did not explicitly grant or deny authority to instruct solicitors or initiate legal actions, leading to questions about litigation costs and potential conflicts of interest in a Deputy connected to Irwin Mitchell appointing Irwin Mitchell to act in litigation.

‘General Authority’

HHJ Hilder sets out the background to the three sets of proceedings, the position of the parties and the relevant law, explaining that the Orders appointing the Deputies contained a general authority and that these proceedings had arisen “…because the Court had concerns about what the Applicants regard as a reasonable interpretation of ‘general’ authority.” The three cases “demonstrate a clear need for further amplification of the Court’s approach” but the learned Judge approached that task cautiously, stating that “‘General’ authority is not susceptible to exhaustive definition.”

In order to amplify the Court’s approach, HHJ Hilder asked a series of questions in relation to authorisation required to conduct litigation on behalf of P, further proceedings in the Court of Protection, to what extent ‘general authority’ encompassed authority to take legal advice on behalf of P, the line between seeking advice and conducting litigation, urgent matters, the addressing of conflicts of interest, cases where the Deputy is not the instructing party, acting as litigation friend and where P has capacity to give instructions for the work in question.

The Conclusions of HHJ Hilder

HHJ Hilder’s conclusions on these questions are set out in an Appendix to the Judgment and are stated below.

The “general” authority to manage property and affairs which is granted by the standard Deputyship order encompasses those common or ordinary tasks which are required to administer P’s estate efficiently.
Authority to make a decision / do an act in respect of P’s property and affairs encompasses such ordinary non-contentious legal tasks, including obtaining legal advice, as are ancillary to giving effect to that authority.
In particular:

a) authority to purchase or sell property includes conveyancing

b) authority to let property includes dealing with leases or tenancy agreements

c) authority to conduct P’s business includes dealing with employment contracts of that business

d) “general” authority encompasses:

i) the preparation of an annual tax return, and therefore obtaining advice as to completion of the return

ii) discharging P’s financial responsibilities under a tenancy, and therefore obtaining advice as to liabilities under the tenancy.

iii) applying P’s funds so as to ensure that the costs of his care arrangements are met, and therefore dealing with employment contracts of directly employed carers

What does this mean for Deputies in practical terms?

As alluded to above, general authority for the management of property and financial affairs will usually encompass tasks such as conveyancing, managing leases, business and associated employment contracts, preparing tax returns (excluding complex returns), taking advice on any tenancy issues, arranging care and where authority encompasses steps in contemplation of contentious litigation, which includes obtaining Counsel’s opinion.

The Court Order appointing the Deputy will specifically state the authorities allowed for the most part. Where work looks to fall outside of the general authority, specific further authority may be required.

Outside the general authority of property and financial affairs Deputies, specific authority is required to conduct litigation. Deputies can take advice on ‘contentious litigation’ on a matter but only up to receiving a letter of response and no further. This has been further clarified to include non-contentious work too including conveyancing work. Specific authority is also required to make payment to a third party and includes any costs incurred by a member of the Protected Party’s family. A property and affairs Deputy also has no authority to make decisions in relation to a health and welfare matter.

Additional authority from the Court should be sought where litigation is required for continuing healthcare appeals, education appeals and appeals against health and care plans, as these fall outside the scope of the general authority. Authority is also required from the Court of Protection to let property including taking steps to form a view as to whether there are grounds to evict a tenant.

For prospective Deputies they should consider whether there is a need to instruct somebody else to provide legal advice at the time they apply to be appointed. Three quotes should be provided including one from their own firm, if desired, then the Deputy should make a best interest decision as to which provider meets the needs of the Protected Party.

For existing Deputies, there is a continuing expectation to consider the limits of their own specific authority and to address any conflicts of interest. Where costs are likely to exceed £2,000, authorisation is required and as for prospective Deputies three quotes should also be obtained. The quotes should be included within the annual Deputyship report, providing justification as to why the chosen firm was instructed. Both monetary and non-monetary significance to the Protected Party will be relevant. If the Deputy wishes for the work to remain in-house and the quote is over £2,000, an Order will be required from the Court.

Conclusion

Overall, this case has had significant implications for the governance of Deputyships, contributing to the amended Deputyship Standards published by the Office of the Public Guardian on 13 February 2023. The principles established in this judgment aim to safeguard the interests of vulnerable individuals and provide clearer guidelines for Deputies in their legal and financial responsibilities.

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?

April 28, 2024July 26, 2024 Helen ApplebyLeave a comment

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.