Tag: clarion

Court fee consultation – have your say!

Ella WilkinsonLeave a comment

The Ministry of Justice have recently published an open consultation regarding the proposed implementing of increases to various court and tribunal fees, citing factors such as the rise in the consumer price index and the running costs of HMCTS. The intended increases are 10% across a range of court and tribunal fees in several jurisdictions, to support the continued delivery of services and to reduce the level of subsidisation required from taxpayers.

Within the proposals, there is an intention to also establish a routine approach to reviewing and amending fees every two years, to take into account any changes in the running costs of HMCTS, as well as the wider financial position in respect of the economy and pricing.

The consultation began on 10 November 2023 and will end on 22 December 2023, so we would invite you to review the proposals and submit your views ahead of this deadline, as Court of Protection fees are included within the changes being considered. The Court of Protection specific proposals are set out in the below table:

ItemCurrent FeeProposed New Fee
Court of Protection application£371.00£408.00
Court of Protection appeal£234.00£257.00
Court of Protection hearing£494.00£543.00
Court of Protection filing for detailed assessment£87.00£96.00
Appeal against a Court of Protection costs assessment£70.00£77.00
Request to set aside a Court of Protection costs certificate£65.00£72.00

You can review the full consultation report via the link below for further information, and this also includes information as to how you can get in touch to submit your views (see pages 17-19 in particular).

Click to access tribunal-fees-consultation-web-accessible.pdf

You can find out more about our services here or you can contact Ella.wilkinson@clarionsolicitors.com for further information, who is an Associate within the Costs and Litigation Funding Department at Clarion.

Kenton v Slee Blackwell [2023] EWHC 2613 (SCCO)

ujjainimistryLeave a comment

Senior Costs Judge Gordon-Saker found that providing a ‘hopelessly inaccurate estimate’ and an inadequate risk assessment regarding a success fee will result in the claim for costs against the client being decreased significantly.

Background

In Kenton v Slee Blackwell [2023] EWHC 2613 (SCCO), the Claimant sued her previous solicitors who had acted for her in a professional negligence claim against another firm, ABC. They had entered into a Conditional Fee Agreement (CFA) in May 2018, with a success fee of 80% if the claim concluded before trial and 90% if it concluded at trial. After mediation, ABC agreed to pay Kenton’s costs in the sum of £138,000.

Slee Blackwell, subsequently, sent Ms. Kenton a bill which amounted to approximately £342,000, where approximately £90,000was payable to the Claimant after damages.

The Defendant’s did not adduce their own evidence or cross-examine Ms Kenton’s witness statement.

But this raised numerous concerns and questions by the Claimant as she had relied on the estimates provided by the Defendant’s, as well as the success fee outlined in the CFA. Judge Gordon-Saker addresses the two key issues of: reliance on costs estimates, and the risk assessment in creating the success fee. This blog will explore his reasoning and decision in turn.

Costs Estimate

Ms Kenton clearly relied on the estimates provided by the Defendant; it was one of the reaons why, she decided to proceed with them to act on her behalf. Slee Blackwell’s estimates outlined as follows:

£5,000 to £20,000 if settlement was reached before issuing of proceedings.
or
£30,000 to £50,000 if the case went to a contested hearing.

In addition to the above estimates, Slee Blackwell’s Ms Slade also explained how she was ‘yet to have a single case where [her] basic fees have been £100k […] the closest is £85k with a fully contested trial’. So, it was expected, from the Claimant’s point of view, that fees would not exceed this, especially since the case settled prior trial.

Unfortunately, the reliance on the estimates by the Claimant was heavily disputed by the Defendants, claiming that it would have been ‘unreasonable’ as it would not have accounted for the ‘unanticipated work required in considering the documents from ABC’. They argued that Ms Kenton did not complain about the original estimates after the costs exceeded £100k as per the costs spreadsheets that were sent to her 5 times over the period of the claim.

However, Judge Gordon-Saker found in the Claimant’s favour that the estimate was ‘inadequate’ and ‘a reasonable estimate of profit costs would have been about £50,000 before issue of proceedings’– not between £5,000 and £20,000. The Defendant’s did not provide a reason as to why the costs far exceeded the estimate and the Judge deemed it would be ‘reasonably expected for [the client] to pay a figure close to the estimate upon which she relied’’. He also added how the Claimant did not have the opportunity to ‘do something different’ as she had already signed the CFA and knew she would ultimately be liable if she tried to terminate it- ‘she could not escape it’. Therefore, £40,000 was the sum that the Claimant was expected to pay.

Success Fee

A risk assessment was carried out by the Defendant’s, which justified the success fees of 80% or 90% (as explained above). Mr Brighton, for the Defendant’s, argued to the Court that the success fees were reasonable and in accordance with the uncertainties involved and was given to the Claimant in an informed manner, to which she had approved. The Claimant contended this line of reasoning by stating these fees were unreasonably high.

Judge Gordon-Saker also agreed with the Claimants in this issue in that the risk assessment was ‘lacking’ and, therefore, there was no informed approval of the Claimant in accordance with CPR 46.9 (3) and (4). He points to paragraph 37 from Herbert v HH Law Ltd [2019] EWCA Civ 527 where informed approval means “that the approval was given following a full and fair explanation to the client” and Judge Gordon-Saker clearly states that the assessment was not a ‘proper assessment of the prospects of successes.’  The risk assessment that would be deemed reasonable and realistic would have generated a success fee of 50% of the basic charges; which was the final decision of the Court in this matter.

Summary

This case emphasises the importance of informed communication with the client, alongside the significance of correctly estimating figures and costs as the figures produced and presented to the client could be the last factor that contributes to the client’s decision in proceeding with the case. Solicitor’s should set out all estimates and charges in a clear format and any risk assessment’s should be undertaken with all factors of the case considered. 

Ujjaini Mistry is a Paralegal in Clarion’s Costs and Litigation Funding Team. You can contact her at ujjaini.mistry@clarionsolicitors.com or on 07436033368.

Costs of attending pre-inquest review can be recoverable

Bethany CollingsLeave a comment

The judgment of Costs Judge James Briley & Ors v Leicester Partnership NHS Trust & Ors [2023] EWHC 1470 (SCCO) provides further insight into the recoverability of costs associated with a Coroner’s Inquest as part of the costs of a subsequent civil claim. Although it is usually accepted that such costs are recoverable in principle, it is not uncommon for paying parties to attempt to limit the extent of claims for costs. One area which is often targeted are costs in respect of pre-inquest review hearings, which can be deemed to be ‘housekeeping tasks’.

The claim related to a young woman who died whilst under the Defendant’s care. The deceased had a substantial history of mental health issues as well as Asperger’s Syndrome and a diagnosis of emotional unstable personality disorder. The deceased also had a history of self-harm and suicide attempts and had been admitted to various mental health units throughout her lifetime. The deceased passed away on 28 December 2016, having been found on her bedroom floor having ligatured with her clothing. The cause of death was an un-survivable hypoxic brain injury.

Following the deceased’s death there was a serious incident investigation which identified a number of concerns. Thereafter there was a further investigation and a future inquest. The deceased’s representatives subsequently brought claims against the Defendant for damages. The civil claims concluded before the inquest took place, however there were two pre-inquest reviews which addressed issues of expert evidence, disclosure, and witness evidence before the damages claim was settled in the sum of £65,000.

In the subsequent detailed assessment of costs, one of the issues between the parties was the extent to which the costs associated with the inquest were recoverable from the Defendant. In particular, the Defendant took issue with the costs of attending the pre-inquest review hearings, which amounted to a total of £14,770.67, including Counsel’s fees, Solicitors costs and disbursements.

The Defendant objected to all costs associated with the pre-inquest reviews largely on grounds that they denied that the costs incurred were of use in the civil claim. This was based on the submission that full admissions of liability had been made and the Defendant had apologised at the time of the deceased’s death. They also suggested that a pre-inquest review was largely ‘housekeeping’ and they relied on the decision in Amanda Helen Lynch (Representative of the Estate of Colette Lynch) and Others v (1) Chief Constable of Warwickshire Police (2) Warwickshire County Council and (3) Warwickshire NHS Trust [14 November 2014], which is an example of a Costs Judge disallowing the costs of a pre-inquest review.

In rejecting the Defendant’s arguments, the Costs Judge confirmed the importance of finding out what caused the death in the first place was a significant factor. It was also held that the fact that the deceased’s representatives had gone on to secure a meaningful apology and a commitment to learn lessons from the death were as important as the financial value of the damages recovered.

As regards the Defendant’s suggestion that the costs were of no use in the civil claim, the Costs Judge found that the participation in the pre-inquest reviews shed light on the treatment received by the deceased, which assisted in considering the non-negligence aspects of the civil claim. In addition, it was found that representation at the pre-inquest reviews helped prevent the Coroner from being influenced by the Defendant’s representatives which may have prevented key documents and facts coming to light. The costs of attending the pre-inquest reviews were therefore allowed in principle.

Bethany Collings is a Paralegal in the Costs and Litigation Funding team and can be contacted at bethany.collings@clarionsolicitors.com or on 0777 951949.

The SCCO Guide 2023: Key Points for COP Practitioners

Ella WilkinsonLeave a comment

The Senior Courts Costs Office have recently released their 2023 guide, and within this Section 27 specifically deals with Court of Protection cases. Please find below a summary of the main points raised.

Reference to Fixed Costs:

The guide references the fixed costs available to practitioners, which can be found under Practice Direction 19B Court of Protection Rules (2017). The Court Order in place will state whether fixed costs apply, or whether the Deputy is entitled to a detailed assessment of their charges. Deputies have the option of electing to take fixed costs instead of proceeding with detailed assessment if deemed appropriate in the case. Further details on the fixed costs available can be found at: https://clarionlegalcosts.com/2022/01/11/strongwhat-fixed-costs-can-be-taken-within-court-of-protection-cases-strong/  

Process of Assessment:

Where P is alive and continues to lack capacity to manage their property and affairs, then the Deputy is unable to simply agree their costs. Where P is subject to an ongoing Order in the Court of Protection and it is ordered that the Deputy’s costs are payable out of the estate of P, then a detailed assessment will be required. However, there are some exceptions where a Deputy is available to agree their costs without the need for assessment, such as in agreeing their outstanding costs with a trustee or administrator where P has passed away, or in agreeing their outstanding costs with P if they have regained capacity and are no longer subject to an Order in the Court of Protection.

To proceed with a detailed assessment, the Deputy is required to lodge with the SCCO:

  • A request for detailed assessment via form N258B (suitable for the majority of cases where the fees are payable out of a fund)
  • A copy of their bill of costs
  • The document giving the right to detailed assessment (Order)
  • Copies of all Orders made by the Court in relation to the costs to be assessed
  • Copies of any Counsel’s fee notes or expert fees claimed within the bill
  • Written evidence of any other disbursements claimed that exceed £500.00
  • A statement signed by the receiving party providing their name, address for service, reference and telephone number
  • A statement including a postal address of any person having a financial interest in the outcome of the assessment, including confirmation of whether this person is a child or a Protected Party
  • Relevant fee payable (currently £87.00)
  • Copies of the OPG102/OPG105 for the applicable year where the assessment relates to general management of P’s property and financial affairs

As a general rule, bills of costs with profit costs of less than £100,000.00 will typically be dealt with by a Cost Officer, with bills in excess of this or more complex in nature tending to be dealt with by a Costs Judge.

Format of bills:

As has been the case since 1 January 2020, all Court of Protection matters are to be e-filed using the CE-File system.

From November 2022 to March 2023, a successful pilot scheme ran regarding the use of the e-bill for Court of Protection cases. E-bills can continue to be filed with the SCCO, however the older style paper bills can also still be prepared and submitted at this time. For general management bills, the year covered within the bill should also be stated at the start, and all bills should include the title of the matter, name and address of the firm, contact number and the matter reference.

For bills with profit costs of under £3,000.00 excluding VAT and disbursements, the Deputy can elect for a short form bill of costs to be prepared for assessment.

Hourly rates:

For work done up until 31 December 2017, the Costs Officers will continue to apply the 2010 Guideline Hourly Rates when assessing bills, unless exceptional circumstances apply.

Further to the decision in PLK and Others (2020) and the rates considerations undertaken, the SCCO have clarified that the judgment does not serve to disapply the indemnity principle in that the practitioner is able to bill at higher rates than provided for within their retainer/client care paperwork. If the rates stated with a retainer are in line with the 2010 Guideline Hourly Rates, then the Deputy is unable to claim and recover any higher rates until this has been updated. If a retainer is silent as to rates or there isn’t a retainer in place, then the Costs Officers will take the approach of applying the 2010 Guideline Hourly Rates up until 30 September 2021, and the 2021 Guideline Hourly Rates thereafter.

In the eventuality that a retainer provides for the 2010 Guideline Hourly Rates alone or for a claim in line with the judgment in PLK and Others, then the Deputy is unable to claim higher rates until this paperwork is updated to facilitate a claim for the 2021 Guideline Hourly Rates. The SCCO have reiterated that it is the responsibility of practitioners to ensure that their paperwork is kept up-to-date, in order for them to keep benefitting from any rate increases.

Authority to assess costs:

The SCCO have confirmed that the Costs Officers will treat the costs of a deputyship application as ending on the date of issue of the Order, which it is noted may be some time after the actual date of the Order. Therefore, any costs incurred after the issuing of the Order will be treated as falling within the first period of general management.

When a Deputy then lodges their bill of costs for the initial management period following their appointment, they should provide a copy of the Order authorising the assessment of their costs. However, the SCCO have advised that they keep records of Orders, and as such that the Deputy is not required to continue to submit a copy in filings for subsequent management years.

In addition, where the Deputy has the option of either taking fixed costs or opting for detailed assessment and chooses to have their costs assessed, then it is good practice to confirm within the narrative of the bill that they have not taken fixed costs for the work undertaken.

Options post assessment:

If the Deputy is not content with the outcome of the assessment and disagrees with reductions made, then they have the option to contact the Costs Officer within 14 days of receiving the provisional assessment to request an informal review of the bill. If the Deputy continues to be dissatisfied after the Costs Officer’s response, then they can progress the matter and request that the SCCO fix a date for an oral hearing before a Costs Judge.

Where a Deputy wishes to accept the provisional assessment then the bill summary requires completion and submission, along with certifying the relevant section of the bill of costs. The Final Costs Certificate will thereafter be issued by the SCCO.

Welfare work:

The general rule with regards to health and welfare work is that there will be no Order as to the costs of proceedings, unlike for costs incurred in relation to property and financial affairs which will generally include an Order for costs to be paid by P or charged to their estate following assessment. If proceedings concern a mix of the two, then the SCCO will as best as possible apportion costs between respective issues.

Costs of sale or purchase of property:

The assessment of costs for these matters generally will take place at the end of a transaction, unless the Court directs otherwise. Unless a sale is completed by trustees, then the fixed rates set out under Practice Direction 19B will apply.  

Post-death costs:

An Order or Direction that costs incurred during the lifetime of P are to be paid out of the estate can be made up to six years after their death. Costs up until the date of the death of P are covered under the authority given in the Deputyship Order, however if these cannot be agreed with the personal representatives, then the outstanding charges can also be assessed under the existing Deputyship Order.

Where P dies whilst an assessment is pending, the Deputy should inform the SCCO in order to suspend the assessment of costs incurred after the date of death until a final direction is obtained, which the Deputy is required to apply for from the Court. Once costs have been assessed, the Deputy will be required to serve a copy of the bill on the appointed personal representatives, or alternatively can seek to agree their outstanding charges with the personal representatives instead of opting for the assessment process.

Payments on account:

Deputies are able to take payments on account, known as interim bills, for the first, second and third quarters of the year in respect of annual management charges, taking into account the size of the estate and functions performed and ensuring that their charges are proportionate and reasonable with regards to the same. Interim bills are to not exceed 25% of the estimated annual charge each quarter, and should not exceed 75% across the management year, as set out under Practice Direction 19B.

In summary, the Court of Protection section of the SCCO Guide for 2023 provides clarification as to key information for professional Deputies with regards to the assessment process and the recovery of their costs for work undertaken on P’s behalf, and is a useful reference tool in this regard for practitioners.  

Ella Wilkinson is an Associate in the Costs and Litigation Funding team at Clarion, and can be contacted for further information at ella.wilkinson@clarionsolicitors.com

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

Estimated time or pure imagination?

Helen ApplebyLeave a comment

In Ikin -v- Shawbrook Bank Limited (2023) the judgment of Senior Costs Judge Gordon Saker looks at the issues surrounding estimated time and contains many points for litigators to take on board. Remember, the responsibility lies not just with the person preparing the Bill but with the Solicitor certifying the accuracy of the Bill.

Brief background

This case involved several Claimants, who brought claims of misrepresentation by finance companies regarding the installation of solar panel systems. 9 Claimants were represented by the same Solicitor. One claim for costs was assessed (at nil) by Regional Costs Judge Baldwin, “The Kinder Claim”. The remaining 8 claims were transferred to the SCCO, to assess counsel’s fees, the expert’s fees and profit costs.

In 2 of the bills (Ikin and Walsh), there were identical generic time entries claimed (18 in total). They were identical in both wording and time claimed.

Part 18 Requests were served, requesting clarification as to whether any time within the Bills was estimated. The response was bland and the Claimants were asked to provide a schedule of estimated time – this was never produced.

On Assessment

The first Bill to be assessed, Scott, was found to be riddled with issues. No time recording ledger was provided and it was evident that no time had been recorded within the substantive action. In truth, almost all the profit costs claimed had been estimated by the Costs Draftsman, some of which were not supported by the file of papers.

The Judge requested an explanation from the Claimants’ Solicitor. A Witness Statement from the conducting Solicitor confirmed she “had no experience of dealing with costs in this type of claim and so had instructed KE Costs (“KEC”), a firm of costs lawyers, “who indicated they had experience of dealing with similar costs arising out of solar claims in the North East”. Miss Wall said that she had assumed “that the descriptions given [of the work recorded in the bill] were fair representations of the work that had been done”. When checking the bill before signing it, she made sure that all the disbursements had been included and “that each stage of the case has been accurately identified”. However she did “not sit there and look at every single line individually and check the accuracy of every single line, because that just seems disproportionate”. She had relied on the expertise of the people she was instructing.

Amended Bills were lodged with the Court where by the descriptions to the time had been updated, however, the sums and time claimed remained unchanged. The amended Bill in Ikin was claimed at £29,774.90 and assessed at £9,250.00.

Ruling and Conduct point

The judge considered the issues relating to the Claimants’ Solicitor’s conduct.  In particular the importance of the Solicitor’s signature on a bill of costs. In this case, there was a clear misconduct point, the Judge found the bills were not accurate and claimed costs the Claimants would not have been liable to pay to Parkerwall (their instructed Solicitor). The Judge imposed two sanctions. The assessed costs were reduced by 60% and the Claimant’s Solicitor was ordered to pay 75% of the Defendant’s costs of the assessment on the Indemnity Basis.

Civil Procedure Rules

“This is an appropriate case in which to disallow costs under r.44.11(2)(a). The Claimants’ legal representatives have claimed costs which their clients were not entitled and have attempted to mislead the Court. In Gempride Ltd -v- Bamrah (2018), the Court of Appeal substituted an order that one half of the profit costs otherwise payable under Part 1 of the Claimant’s bill should be disallowed. That followed findings that the Claimant Solicitor had certified a bill which claimed an hourly rate in excess of the rate that she was obliged to pay and had wrongly stated in her replies that BTE insurance was not available to her. There was no finding of dishonesty.

It seems to me that the present cases are comparable. Eight bills have either been reduced significantly or have been agreed in significantly reduced amounts as a result of the misleading entries and the overestimation of time. As the parties have agreed global figures for profit costs and disbursements in the six unassessed cases, rather than disallow one half of the profit costs I would disallow a smaller proportion of the total figures.”

Costs follow the event

The Judge’s attention then turned to the costs of the detailed assessment. “Clearly this is a case where the court should make a different order to the usual order that the paying party pays the costs of the receiving party (CPR 47.20(1)). The conduct of the receiving parties’ solicitors reasonably required investigation. That led to a significant lengthening of the detailed assessment hearings. But for that investigation, the hearings might have been avoided completely. The conduct has been found to be wanting, and the bills have been reduced substantially.

Without an order under r.44.11(2)(b), the appropriate order under r.47.20 would have been that the Claimants should pay at least a proportion of the Defendants’ costs of the detailed assessment proceedings. As between the Claimants and their solicitors, the latter should bear those costs.

Some time was spent investigating the fees of counsel and the experts, which, in the event, did not lead to significant reductions. Whatever apparent irregularities there were in billing, the work had been done and the Claimants were entitled to recover the costs of that work. The Claimants should be entitled to the costs of those issues, but they were a relatively small part of the whole. The appropriate order under r.47.20 would have been that the Claimants should pay 75 per cent of the Defendants’ costs.

The fault, however lies, at the door of the Claimants’ Solicitors, rather than the Claimants, and so the appropriate order is that the Claimants’ Solicitor should pay those costs under r.44.11(2)(b). On any view the conduct of the Claimants’ Solicitor has taken these cases “out of the norm” and it is appropriate that the costs should be assessed on the indemnity basis.”

Summary

This brings home the importance of accurate time recording and certification by Solicitors. It remains the Solicitors responsibility to ensure that the certificate of accuracy guarantees the accuracy of the costs claimed.

Helen Appleby is an Associate in Clarion’s Costs and Litigation Funding Team. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

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 August, and the Admin Team are working on returning bills that have been assessed, and are currently up to those in the 4th week of April.

With regards to e-filing, new filings submitted in the 4th week of March are currently being dealt with.

Notice-to-COP-Customers-02.05.2023Download

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

Civil Justice Council Report on Costs and the Impact on Court of Protection Costs

Laura SugarmanLeave a comment

Yesterday, the Civil Justice Council publishes their costs consultation responses and recommendations: https://www.judiciary.uk/civil-justice-council-costs-review-final-report/

Four main areas were considered; costs budgeting, guideline hourly rates, pre-action and digitisation and consequences of the extension of Fixed Recoverable Costs, with guideline hourly rates being the main area that had a potential to impact Court of Protection costs.

With respect to Guideline Hourly Rates, the majority of respondents found that the Guideline Hourly Rates had a useful role both as a starting point for summary and detailed assessment and indicate to the market generally the rates that would be considered reasonable by the Courts.

Almost all respondents believed that the Guideline Hourly Rates should be frequently updated as to ensure they serve their commercial purpose. However, views were mixed as to the frequency of which they were updated.

Abandoning the Guideline Hourly Rates was considered, however this was largely disagreed with by the respondents, with an argument that it would lead to uncertainty and cause difficulties for judges.

Various changes were considered, particularly as many respondents applying Guideline Hourly Rates outside of London noted that these were set considerably lower than the London hourly rates. A strong view was set that guideline hourly rates for London and elsewhere should not be different. Another suggestion was that the bands should reflect the complexity of the work as opposed to the location where the work was carried out.

It was recommended that the Guideline Hourly Rates be retained and in the short term, measures should be taken to create a new band for complex, high value and commercial work regardless of the location where the work was carried out. Also recommended was that Counsel’s fees should be assessed by reference to a guideline hourly rate. Further, when considering a departure from the Guideline Hourly Rates, the test being applied should be clearly stated.

Longer term recommendations included retaining the rates for the next five years, with a view to carrying out a Detailed Review at the end of the five years. Also recommended was a working group to ensure a satisfactory methodology can be identified and put in practice. Index linking was recommended to be carried out annually, in order to remove the need to carry out a form of detailed review on a regular basis. This will reflect the position of the market.

Overall, the immediate impact of the review is minimal to Court of Protection costs, however the Civil Justice Council will now consider how these recommendations are taken forward.

If you have any questions, please contact Laura Gillin at Laura.Gillin@clarionsolicitors.com

Reductions to COP assessments and what you need to know about them

Stephanie KayeLeave a comment

At Clarion, we prepare over 2500 Court of Protection bills of costs per year to be assessed by the Senior Court Costs Office. We also review the bills once they have been assessed and monitor the common reductions. Based on our experience, we have identified the 5 most common reductions and the reasoning behind the same. The below 5 reductions are in line with published case law and are therefore not likely to be allowed if a re-assessment is requested.

Arranging payments

You may notice that arranging payments are reduced throughout the bill of costs. This is in line with the Case of Jamie Walker (2002) whereby Master O’Hare defined checking the file to ensure an invoice has not already been paid, checking sufficient funds are in the account and writing a cheque and getting it signed as non-fee earner work. Arranging payments and considering invoices are typically reduced to 3 minutes within the bill of costs at Grade D rates in line with this. We therefore suggest payments and considering invoices are delegated to a Grade D fee earner. This is something that the Professional Deputies Forum would like to challenge in the future, as significant payments require consideration and often approval above Grade D rates. We hope that this case law will be reconsidered in the future.

Enclosure letters

Where you may have sent a letter enclosing payment of an invoice or an email confirming settlement of an invoice, this will be classed as an ‘enclosure letter’. In line with the case of Leighanne Radcliffe (2004), letters were reduced from the standard rate of 6 minutes to 3 minutes within the bill of costs. We therefore recommend that enclosure letters are delegated to a junior fee earner and the time is limited where possible to prevent overbilling.

Two fee earners at an attendance

If you have claimed two fee earners in attendance, in our experience, it will only be allowed in exceptional circumstances. Typically, the second fee earner’s time is struck out or reduced. In the case of Garylee Grimsley (1998) and further to R v LegalAid Board Ex Parte Bruce (1991), two fee earners at an attendance were reduced as it was deemed to be duplicative work. It stated, “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”. Therefore, we recommend that two fee earners should only be claimed at an attendance whereby it is necessary and reasonable to do so, as there is a higher cost to the Protected Party. Cases where two fee earners may be considered reasonable are where there is a significant safety risk or the second fee earner has different expertise, but this time is still subject to assessment and it’s important that the reasoning is clear within your file notes to justify the attendance of both fee earners.

High level of contact with the Protected Party

You may see a reduction occur whereby there is a high level of contact with the Protected Party, as it is seen to be the Deputy’s duty to keep the costs at a minimum for the Protected Party. Excessive contact would lead to a higher level of costs, which is not in the best interests of the Protected Party. A reduction could occur in line with the case of Trudy Samler (2001). This case raises the question of whether the contact was instigated by the Protected Party and whether the Deputy should be paid for such contact. Excessive contact with the Protected Party could therefore be reduced due to this case and we recommend that Deputy’s keep an eye on this. We recommend that Deputies try and manage the levels of contact with any party and involve other professionals to support the Protected Party or their family in order to manage costs.

Record keeping

Work in relation to updating the Protected Party’s financial records is typically reduced by the Costs Officers on assessment. In the case of Philpott (2015- unwritten), Master Haworth stated “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 that the work is distinguished in this way in order to avoid the reduction on assessment and the word ‘updating’ should also be avoided.

We are happy to review the assessed bills and provide advice to any professional Deputy who is not happy with the outcome of their assessment. Please contact Casey for more information at casey.mcgregor@clarionsolicitors.com

Manchester University Hospitals NHS Foundation Trust and JS and Manchester City Council [2023]

Leah MorrisLeave a comment

This case concerns a 17 year old who had been detained under s2 of the Mental Health Act but was deprived of her liberty when that authority lapsed.

Background of P

By way of background, P has a diagnosis of Autistic Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD), learning disability and an attachment disorder. Due to P’s complex mental health needs, this meant that she was in danger by her own hand as well as at the hands of others.

Overview

P had been admitted to a specialist child and adolescent psychiatric unit as an ‘informal patient’, meaning she had been assessed as having capacity to consent to admission. P was discharged to the care of her mother over concerns she could become institutionalised. Following this, P ran away from home and into traffic. She was detained by the police who were so concerned about her mental health that they used their powers under s136 of the Mental Health Act to detain her and take her to a place of safety.

It was here that a Mental Health Act assessment was carried out and P was assessed as not requiring admission. P was therefore discharged back into her mother’s care with a community based care and treatment plan.

Several days later, P was detained under s2 of the Mental Health Act following an overdose. After recovery, she remained on the ward even after authority to detain expired. It was agreed that being on the ward was inappropriate and detrimental to her health.

P’s Care and Treatment in Hospital

Due to P’s attempts to self-harm, the hospital put in place a ‘Care Plan of Restrictions’. Incidents were recorded by the hospital and HHJ Burrows considered these when providing the judgment.

Court of Protection Application

From the date that the s2 expired, P was not subject to any lawful regime of detention. P was subject to a regime of detention due to the fact that she was under continuous supervision and control and was not free to leave the ward, in light of the ‘Care Plan of Restrictions’ that were imposed. HHJ Burrows accepted that during that time, P lacked the capacity to make decisions in regard to her care and treatment due to her mental health conditions. Because of this, P was therefore not able to consent to her residence, care, treatment or to being deprived of her liberty.

On 10 February 2023, the hospital made an application to the Court of Protection seeking several declarations in relation to P remaining at the hospital in her best interests and to be subject to the restrictions contained in the care plan.

Judgment

HHJ Burrows declared that once the s2 authority had expired, P had been unlawfully deprived of her liberty. HHJ Burrows considered P’s capacity and the capacity assessment conducted in order to assist with the judgment.

Conclusion

It was concluded that P was ineligible to be deprived of her liberty in the hospital under the Mental Capacity Act. She was within the scope of the Mental Health Act under Case E. HHJ Burrows concluded that for the reasons given, P could have been detained and treated under the Mental Health Act.

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A Local Authority v PG & Ors [2023] EWCOP 9

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This case concerns P’s views in relation to contact with care workers and receiving care where P’s capacity may fluctuate.

Background

P is a 34-year-old woman with a diagnosis of autism spectrum disorder, Emotionally Unstable Personality Disorder, and mild learning disability. She currently lives in a supported living placement. Before then, she lived with her mother where a deterioration in her mental health led to her being admitted under s2 of the Mental Health Act. There had been a number of incidents involving P around drugs, alcohol and approaching younger men in public and it was necessary for the Judge to consider whether P had capacity.

Views of the Social Worker and the Medical Expert

At the hearing, a social worker talked of potential triggers for P’s behaviour and Dr Jordan King, who is a Highly Specialist Clinical Psychologist at the Intensive Support Team of the Adult Neurodevelopmental Services for a NHS Trust, prepared a report for s.49 Mental Capacity Act 2005 purposes. Dr King gave oral evidence to the Court and was cross examined regarding P’s fluctuating capacity and the circumstances in which this occurred. Dr King explained that when P was calm, she could assess and weigh up risks but when faced with a trigger, P would become agitated and would struggle with weighing up and understanding information.

Conclusion

A Judgement was made that P should be deemed as lacking capacity, but emphasis was placed on the fact that when being assisted by the care workers, P’s autonomy should be protected, and interference should be kept to minimal levels to keep P safe.

The Judge considered the complexities of the fluctuating capacity for P and the difficulties the care workers would face in having to exercise a complicated decision-making process in order to decide whether at any individual moment P did or did not have capacity. This would then vary depending on the individual care worker, and how much of the particular episode they had witnessed. The Judge deemed that the result of this would fail to protect P, probably have minimal benefit in protecting her autonomy and in practice make the law unworkable.

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