Tag: clarion

Update from SCCO on COP assessment delays

Lydia MarshallLeave a comment

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

In summary, the Costs Officers are currently assessing bills received around the beginning of 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.

Notice-to-COP-Customers-15.04.2024-1Download

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

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

Leah MorrisLeave a comment

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

A Party’s impecuniosity is not a reason to depart from the normal position on costs

Katie SpencerLeave a comment

In the case of K v W (Respondent’s Costs on Application for Permission to Appeal) [2023] EWFC 300 (B) (25 October 2023), HHJ David Williams outlined the costs implications for unsuccessful appeal attempts within the Family Court. The ruling ordered the Mother to pay the Father’s legal costs totalling £6,021.

The Appeal

Within the judgment, HHJ David Williams referred to the Appellant and Respondent as the Mother and Father. The Mother made an oral application to appeal the decision of the District Judge at the handing down of judgment hearing, which was refused. The Mother filed an Appellant’s notice for leave to appeal.

The Father was required to file a skeleton argument in response to the appeal and attend the hearing. At the permission to appeal hearing, the Appellant’s notice was refused on all grounds.

Costs of the Appeal

The Father filed a Schedule of Costs in advance of the hearing seeking a costs order against the Mother in the sum of £6,021. The Father submitted that as his attendance at the hearing was requested by the Court and due to the application being unsuccessful, a costs order should be ordered in his favour. The Father’s Schedule of Costs included £2,000 for Counsel’s brief fee and £1,000 for drafting the skeleton argument.

The Mother opposed the costs order and submitted that she had already paid the sum of £20,000 to Dr Proudman for drafting her skeleton argument and a £8,000 brief fee for attending the hearing. The Mother further submitted that she had been struggling financially and had only £100 in her bank. Nonetheless, her financial contributions to her own legal costs raised questions about her ability to pay the costs submitted by the Father.

Paragraph 4.24 of Practice Direction 30A states:

“Where the Court does request –

  • submissions from; or
  • attendance by the respondent,

the court will normally allow the costs of the respondent if permission is refused.”

In this case, the Court requested that the father file a skeleton argument and attend the hearing. For the Court to depart from the usual position as set out in the Practice Direction above, there must be a compelling reason. The Court held that “The mother’s alleged impecuniosity is not a reason to depart from the normal position on costs, although it may be relevant to how or when any costs order is to be satisfied.”

Furthermore, HHJ David Williams stated “it is clear from the mother’s own case that she either had or has been able to access funds of circa £30,000 in order to pay the fees of her counsel, Dr Proudman. If the payment of those fees has brought about the mother’s impecuniosity, as alleged, that cannot be a reason not to make a costs order in favour of the father.”

The Judge held that as the Mother was previously refused permission to appeal and knew the risks of having to pay the Father’s costs, there was no reason for the Father to be left out of pocket. When assessing the costs, the Judge concluded that the costs claimed by the Mother were significantly higher than the costs claimed by the Father. The Judge made reference to both fees for the skeleton arguments, noting that the Mother’s was 10 times more than the Father’s. An order for costs was ordered in favour of the Father and the full sum of£6,021 was held to be reasonable and proportionate.

Katie Spencer is a Paralegal Apprentice in Clarion’s Costs and Litigation Funding Team. You can contact her on 07741 988925 or at katie.spencer@clarionsolicitors.com.

The latest update from the SCCO as to their delays.

Ellie Howard-TaylorLeave a comment

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.

The Bar Council’s Guidance on the use of Generative AI

Joanne ChaseLeave a comment

The Bar Council has recently issued guidance for barristers on the use of generative Artificial Intelligence (AI), including ChatGPT and other large language model systems (LLMs). The guidance concludes that there is nothing inherently improper about using reliable AI tools to augment legal services, but they must be properly understood by the individual practitioner and used responsibly.

The guidance is not legal advice and is not ‘guidance’ for the purposes of the BSB Handbook I6.4. However,  it highlights the key risks with LLMs and explores the considerations for barristers, and by extension all lawyers, when using generative AI:

  • Due to possible hallucinations and biases, it is important for lawyers to verify the output of LLM software and maintain proper procedures for checking generative outputs.
  • LLMs should not be a substitute for the exercise of professional judgment, quality legal analysis and the expertise that clients, courts and society expect from their legal representatives.
  • Lawyers should not to share with an LLM system any legally privileged or confidential information.
  • Lawyers should critically assess whether content generated by LLMs might violate intellectual property rights or breach trademarks.
  • It is important to keep abreast of relevant Civil Procedure Rules, which in the future may implement rules/practice directions on the use of LLMs, for example, requiring parties to disclose when they have used generative AI in the preparation of materials, as has been adopted by the Court of the King’s Bench in Manitoba.

This Bar Council guidance will be kept under review and updated periodically, however practitioners will need to be vigilant and adapt as the legal and regulatory landscape changes.

GK & Anor v EE (formerly known as RK) & Anor [2023] EWCOP 49

Ella WilkinsonLeave a comment

The recent case involves an application by EE’s parents, GK and LK, to prevent EE from undergoing any type of gender affirming medical treatment and to instruct an expert psychologist and an expert psychiatrist in those proceedings.

Background

EE is 18 years old and identifies as non-binary, using the pronouns they/them. EE wished to undergo gender affirming surgery. EE’s parents objected to this, stating “we strongly object to our daughter accessing medical intervention to change her body”. They contended that EE wearing a breast binder was a form of self-harm and were concerned regarding EE’s desire to undergo ‘top surgery’, which is a surgery that removes breast tissue and reshapes the chest, arguing that this procedure was irreversible and would leave EE with adverse health consequences. EE’s parents requested a final declaration and consequential Orders from the Court of Protection. 

Legal Framework

EE’s parents argued that the NHS Service Specification stated that any form of social transitioning in adolescents should not be seen as a neutral act but an active intervention that should only occur with the intervention of qualified clinicians, therefore EE did not have the capacity to make the decision to undergo any gender affirming procedure. EE and the local authorities argued that EE was not undergoing any form of gender affirming surgery and no treatments were scheduled for the future, therefore, in line with the Mental Capacity Act 2005, it would not be appropriate for the Court to make any declaration or Order on EE’s parents’ application at the time. 

Conclusion

As a result of the above, the Court of Protection refused the application on the grounds of there not yet being a clear matter as to which the Court could explore and determine the question of capacity under S2(1) Mental Capacity Act (2005). The Court was further satisfied that expert evidence as to capacity was not needed to resolve the issues in the proceedings.

Sandwell and West Birmingham Hospitals NHS Trust v GH [2023]

maidiedeightonLeave a comment

This case involved GH who is a 52 year old woman with a diagnosis of schizoaffective disorder. GH was diagnosed with breast cancer in March 2023 however she does not believe the diagnosis and refuses all treatment.  

The problem was not that GH could not understand the key concepts involved, it was that she had delusional beliefs that prevented her from understanding that she has cancer and weighing this information up. 

Due to the refusal of treatment, the NHS Trust (who were responsible for managing her treatment) applied to the Court for declarations and orders that GH lacked capacity to conduct these proceedings. GH also was unable to make decisions on whether or not to undergo breast cancer surgery therefore the Trust applied that it was lawful and in her best interests for the Applicant to deliver care and treatment in accordance with her care plan. This involved sedation, anaesthesia and a right mastectomy. 

The Application was considered and discussed as long ago as May 2023. This raised concerns as it was made nearly seven months after diagnosis and so shortly before the listed surgery. 

Following the application, the Court made the declarations and concluded that it was in GH’s best interests to undergo the proposed surgery. The Trust was also ordered to pay 80% of the costs of the Official Solicitor because of the unreasonable delay in the Trust making the application. 

You can find out more about our services here or you can contact Maidie Deighton at Maidie.Deighton@clarionsolicitors.com for further information.

Guideline Hourly Rates in the Court of Protection

Laura SugarmanLeave a comment

As you may be aware, the Master of the Rolls has accepted the recommendations of the Civil Justice Council Costs review. As per the recommendations, the Master of the Rolls has confirmed that ‘the 2021 Guideline Hourly Rates will be uplifted for inflation from 1 January 2024 in accordance with the Services Producer Price Index.’ The guideline hourly rates will then be uplifted annually by the Services Producer Price Index.

The new hourly rates are as follows:

The increase is approximately 6-7% depending on your geographical location.

What impact will the new Guideline Hourly Rates have on Court of Protection?

The new guideline hourly rates will come into effect from 1 January 2024. In order to ensure that COP Practitioners are able to claim these within bills, it is imperative that all retainer letters and client care letters are updated to reflect the new hourly rates. Without this paperwork, the practitioner will be unable to claim the new hourly rates as they would be in breach of the indemnity principle.

The indemnity principle states that ‘a successful party cannot recover from an unsuccessful party more by way of costs than the successful party is liable to pay his or her legal representatives’. When applied to Court of Protection costs, this means a Deputy cannot claim costs higher than those stated in their client care letter or retainer letter. Therefore, we recommend that all paperwork be updated to reflect the new guideline hourly rates in advance of 1st January 2024.

Please be aware that the retainers cannot be backdated, and therefore the rates cannot be claimed prior to 1 January 2024. It is also the case that if the client care letters are updated post 1 January 2024, the guideline hourly rates cannot be claimed prior to the date of the updated client care letter.

If you have any queries you can contact Laura Sugarman at Laura.Sugarman@clarionsolicitors.com for further information.

Reductions to costs won’t be applied automatically- rules the High Court

ujjainimistryLeave a comment

Where a paying party requests a reduction in costs on the basis that “there is always a reduction,” the request will not necessarily be granted and a lower figure automatically awarded, where the costs are deemed reasonable and proportionate.

In his decision in Next Generation Holdings Ltd & Anor v Finch & Ors [2023] EWHC 2925 (Ch), HHJ Johns KC said that it ‘would be wrong’ to lower any costs payable, simply on the assumption that reductions are often made.

Background Information

The case involved a financial dispute which arose following a Share Purchase Agreement. Subsequently, allegations of fraudulent misrepresentation were made against the Defendant, who proceeded to seek a contribution from a Third Party (KD).

At the end of the 3-week trial in June 2023, HHJ Johns KC decided that the third party was not liable, but the initial defendants were.

A consequential judgment on matters resulting from the initial judgment, including costs, was handed down on 17 November 2023.

Summary Assessment

The sum of £65,640 plus VAT was sought by the third party for costs, which included advice and representation by the direct access barrister instructed on her behalf, with this figure including a sum of £52,500 for representation at trial. It was at this stage that Counsel for the Defendants, sought a reduction of costs on the basis that ‘there always is’ […] a reduction in costs. He also insisted that the hourly rate of Counsel, at £495, was too high and that trial preparation claimed, at over 5 days was too long.

Delivering judgment, HHJ Johns KC opined that the £52,500 trial fee was reasonable for a complex fraud trial that involved a significant amount of documentation. It was highlighted that the role of the Third Party’s Counsel was a smaller role than that of the other parties instructed Solicitors but five days trial preparation was proportionate in the matter.

The suggestion that the hourly rate was too high was also immediately dismissed, on the basis that the guideline rate for an equivalent Solicitor was £512. Furthermore, the Defendant’s Counsel fees of £525,425 were also deemed demonstrative of the fact that the sums claimed by the Third Party’s Counsel were proportionate. HHJ Johns KC considered that the total sum of £65,640 was “well within the range of proportionate figures” and it would have been wrong for any reductions to have been made, especially considering the fact the Third Party would have been defending a claim with a value of over £3 million if found liable. 

This case demonstrates that to obtain reductions to costs claimed, paying parties must have legitimate reasons for seeking to do so.

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

Understanding the E-bill once assessed

elliescallyLeave a comment

At Clarion, we prepare over 2500 Court of Protection bills of costs each year to be assessed by the Senior Court Costs Office. We also review the bills once they have been assessed, monitor the common reductions and give advice to our clients on the outcomes of their assessment.

With the introduction of the e-bill, it can be more difficult to understand what has been reduced and the total costs allowed upon assessment. Below is a quick guide on how to understand the Costs Officer’s reductions.

Time allowed

Column K on Tab 6 of the e-bill which is labelled “Time Allowed” shows the amount of units allowed by the Costs Officer for each respective entry. If the amount of units have been changed from the original amount, the box will be highlighted as yellow and the new amount allowed will have been entered by the Costs Officer.

Fee earner allowed

Column M on Tab 6 of the e-bill labelled “FE Allowed” shows the fee earner/grade of fee earner. Again, if the fee earner has been changed by the Costs Officer, the box will be highlighted as yellow. The Costs Officer will use “A” for a Grade A fee earner, “B” for a Grade B fee earner, “C” for a Grade C fee earner and “D” for a Grade D fee earner. Please review Tab 4 which is where the fee earners are shown to ascertain whether all the rates have been allowed as claimed in the original bill. If a fee earners rate has been changed, the box will be highlighted as yellow and the new rate will have been entered by the Costs Officer, which will subsequently apply to all work entries shown on Tab 6. If you scroll down on this page, the Grades used and created by the Costs Officer will be shown.

The Costs Officer’s Comments

Column Z called “Finding text” shows the reasons as to why the Costs Officer has reduced the entry. Tab 17 deciphers the codes the Costs Officer may use and are shown below. These codes cover the most common reasons for reductions seen across COP assessments:

Total allowed

Tab 12 is now a pre-populated bill summary document based on the changes made in the earlier tabs, and shows clearly how much the profit costs were originally, and how much has been allowed on assessment, as well as the allowed VAT amount and whether the Costs Draftsman’s fee has been allowed or reduced.

Please get in touch with us at Costs.Support@Clarionsolicitors.com if you require any assistance to understand the e-bill once assessed. We can help provide you with advice in relation to whether we think you should appeal the reductions, what you can appeal and what you cannot appeal. We can also assist with drafting a request for reassessment letter. It is very important that you understand the reductions made to ensure that you’re happy with the outcome of the assessment.

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