Tag: #clarioncosts

Parties claimed costs multiple times more than the claim was worth

Katie SpencerLeave a comment

Background

In O’Sullivan v Trading 212 UK Ltd [2026] EWCC 32 (03 June 2026), the Claimant brought a claim arising from the Defendant’s closure of his trading account. The Court was highly critical of the parties’ approach to litigation, noting the apparent absence of ADR and the disproportionate escalation of a modest claim into a half‑million-pound costs dispute.

Costs awarded

Applying the usual rule, CPR 44.2(2), the Court held that the Defendant was the successful party and the Claimant should pay the Defendant’s costs.

However, the Court identified specific issues which justified departures from the default position.

  1. The Defendant’s late disclosure

Although the late disclosure did not affect the outcome, it prolonged the trial, triggered additional applications and increased costs for both parties.

The Court deprived the Defendant of its own costs for the disclosure phase and ordered the Defendant to pay the Claimant’s costs caused by the late disclosure.

The Claimant claimed £54,115, whereas a total of £27,000 plus VAT was allowed.

  1. The Defendant’s Strike-Out application

This application was pursued based on the Claimant’s alleged conduct towards witnesses. Although the application was adjourned on the basis of undertakings, the Court found it was reasonable to bring some form of application.

The Defendant claimed £59,513.67, which the Court found disproportionate. A total of £15,000 was allowed.

The Court adopted a broad‑brush approach to summary assessment, emphasising that costs should be assessed by reference to overall proportionality rather than a line-by-line analysis.

The Court declined to engage in wider conduct-based arguments advanced by both parties, considering such analysis disproportionate.

Departing from the Costs Budgets

Despite CPR 3.18, the Court found good reason to depart from the approved costs budgets, resulting in downward revisions.

The Court looked at proportionality, the value of the claim and the relatively small number of documents. The Court also observed that the case had likely been misallocated and should not have proceeded on a multi-track basis of this scale. The court also raised concern about the hourly rates, finding significant reductions necessary.

Conclusion

The table below demonstrates the disparity between costs incurred and costs allowed, highlighting the severity of the disproportion:

Party Costs incurred Costs allowed
Claimant £246,426 £32,400

(For the Defendant’s late disclosure)
Defendant £452,456.26 £128,750

 

 

Following set-off, the Claimant was ordered to pay £96,350.

This case serves as a clear reminder that the Court will closely scrutinise proportionality in litigation and may impose significant downward adjustments, even where costs budgets have been approved.

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

CRPC Annual Open Meeting (8 May 2026): Key Costs Takeaways

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The Civil Procedure Rule Committee’s Annual Open Meeting on 8 May 2026 provided useful insight into the Committee’s current thinking on civil costs. Whilst no immediate rule changes were announced, a number of important costs issues were discussed, highlighting the CRPC’s approach to future reform.

Key Costs Issues Discussed

  1. Mazur

The Committee was asked whether it intended to amend the CPR following the Court of Appeal’s decision in Mazur, particularly regarding the definition of ‘legal representative’. The Committee indicated that it wishes to observe how the industry responds to the decision before proceeding with any intervention.

  1. Costs Budgeting (Precedent H)

The meeting addressed uncertainty surrounding CPR 3.15(5)(a), specifically on whether the £1,000 or 1% cap applies only to the first draft of a Precedent H or also covers subsequent revisions prior to the first CCMC.

Master Sullivan confirmed that the intention is for the cap to cover the preparation of the budget, which is presented at the costs management hearing. She acknowledged that the wording could be clarified and suggested that the CPRC should consider whether any amendments are required.

Those in practice will know that there are occasions when multiple versions of the initial budget are required before the matter proceeds to a CCMC, which causes tension with the current wording of the CPR and fee caps which can only be lifted in exceptional circumstances.

  1. Bill Certification

Following Mazur, the Committee was asked whether the certification of a bill of costs should be extended to other authorised legal professionals such as CILEX practitioners, Costs Lawyers and barristers with the relevant rights.

The CPRC indicated that when the overall consequences of Mazur become clear, it will consider whether any rule changes are required. Therefore, the current process is preserved.

  1. Fixed Recoverable Costs (FRC)

Several concerns were raised about the operation of the extended FRC regime:

  • Clinical Negligence FRC – No update was provided on extending FRC to lower-value clinical negligence claims. The Committee confirmed that this remains a matter for the Department of Health and Social Care, indicating that there will be no imminent procedural changes.
  • Fast Track – v – Intermediate Track Costs – Concerns were raised about the potential for higher recoverable costs on the Fast than Intermediate Track due to differences in staging and case types. Mr Justice Trower clarified that the structure of the two tracks is based on proportionality rather than linearity, meaning that the figures correspond to how each track is intended to operate rather than forming a single ascending scale. The two tracks constitute separate frameworks designed to provide predictable fixed costs within their respective scope and that their differing outcomes arise from their distinct structures, rather than from inadvertence.
  • Intermediate Track Band 1 – Specific concerns were expressed about the low costs recovery for liability-admitted personal injury claims in Intermediate Track Band 1. Mr Justice Trower indicated any reform will depend on the government’s consideration of the Fixed Recoverable Costs stocktake and forthcoming post-implementation review.
  • Interim Application Costs under FRC – It was suggested that the current fixed costs for interim applications no longer reflect the reality of practice, as many now require extensive preparation, contested hearings and advocacy. As a result, the fixed recoverable amounts often fall short of the work involved. The Committee advised that these concerns would be considered as part of the broader post-implementation review.
  • Further FRC Issues – Questions were raised in relation to late acceptance of Part 36 offers under FRC, as well as the specific issues outlined in Attersley v UK Insurance Limited [2026] EWCA Civ 217, and inconsistent judicial allocation of cases to Complexity Bands. It was advised that these issues will be considered/responded to out-of-committee.

Although no immediate reforms were announced, the meeting demonstrated that the CPRC is monitoring the recent costs reforms made. The Committee’s current approach seems to be to allow recent developments to settle prior to considering further procedural amendments, with many of the issues raised expected to be considered by the

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

Post-Judgment Security for Costs? The SCCO Clarifies the Position

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In the case of Magomedov & Ors v Rabinovich & Ors [2026] EWHC 962 (SCCO), Costs Judge Brown considered an “unusual application” concerning whether the SCCO had jurisdiction to order security for costs in detailed assessment proceedings.

Background Facts

Following the substantive claim, the Applicants (Defendants in the original claim) served Notice of Commencement of Detailed Assessment and a Bill of Costs totalling £4.2million, pursuant to four costs orders made in their favour. No request for detailed assessment was made, and Points of Dispute had not been served. Also, interim payments totalling £1.8 million had already been received.

The Applicants applied for an Order under CPR 25 for the Respondents (the Claimants in the original claim) to provide security for the costs of detailed assessment proceedings. The Respondents opposed the application on the basis that the SCCO lacked jurisdiction to consider the application because its powers were limited to those set out in CPR 47, which provides for the court to grant an interim costs certificate ordering the paying party to pay such sum as the SCCO considers appropriate.

The Applicants sought the sum of £336,000 which was some 70% of the costs it said would be incurred of £480,000.  A bill of costs had been prepared at a cost of £220,000. It was said that some £259,000 would be incurred in the assessment, assuming a three-week hearing.

The Court referred to the relevant provisions of CPR 25, specifically 25.1 which enables the court to grant an order for the security of costs as one of the interim remedies outlined in that subsection. Subsections 25.26(1) and 25.27 were also relied upon in support of the application.

The Application

The Application was dismissed. Costs Judge Brown held that, although the court hearing the substantive claim may order security for the costs of detailed assessment as part of the overall costs of the proceedings, once the substantive proceedings had concluded, the SCCO did not possess the wider jurisdiction available to the court hearing the substantive claim and was instead limited to the narrower powers under CPR Part 47.

While CPR 25.12 allows the court dealing with the substantive claim to order security for costs “after judgment”, this did not extend to subsequent detailed assessment proceedings. CPR 47 was described as a ‘self-contained code’ governing detailed assessment and did not incorporate the provisions of CPR 25.

The Court also emphasised that CPR 47 contains mechanisms that are designed to protect the receiving party and that the only interim remedy available in detailed assessment proceedings was an interim costs certificate under CPR 47.16.

The judge identified several structural reasons for declining jurisdiction, including the absence of a clear enforcement mechanism, the difficulty in identifying the “defendant” for CPR 25 purposes once the parties had become receiving and paying parties, and the risk of creating disproportionate satellite litigation.

In any event, even if jurisdiction had existed, the judge stated that the application would have been refused as a matter of discretion, particularly because the Applicants had failed to raise the issue before the court determining the substantive claim. The appropriate course for parties seeking security for the costs of detailed assessment is therefore to apply to the court dealing with the substantive proceedings, which has sufficient power to include such costs within a security for costs order.

Conclusion

The Senior Courts Costs Office (SCCO) has held for the first time that it lacks jurisdiction to order security for costs under CPR 25, which in turn highlights the fact that CPR Part 47 operates as a ‘self-contained code’.

The judgment clarifies the limit of the SCCO’s jurisdiction, confirming that powers that derive from the CPR cannot be imported into general discretion.

The key takeaway for practitioners is if an application for security for costs is required, it should be made to the court hearing the underlying claim. Once the proceedings enter the costs jurisdiction in CPR 47, the available tools to remedy matters become narrower.

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

$35 Million in Costs for a Two-Week Hearing: Is Arbitration Still More Cost Effective Than Litigation?

Image Daniel MurrayLeave a comment

Introduction The High Court’s decision in Genel Energy Miran Bina Bawi Limited v The Kurdistan Regional Government of Iraq [2026] EWHC 1003 (Comm) reinforces two familiar themes in English arbitration law: the finality of arbitral awards and the limited scope for court intervention under the Arbitration Act 1996. The case arose from a challenge under […]

SCCO Updates Filing Guidance for Court of Protection Bills

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.

When High-Value Claims Still Require Budgeting: Garry White & Ors v Uber London Limited & Ors

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The Claim

In the case of Garry White & Ors v Uber London Limited & Ors, approximately 13,000 London black cab drivers issued group proceedings against companies within the Uber group, claiming losses of around £199 million. A further claim, valued at approximately £141 million, was brought by the assignee of two private hire operators, Kabbee and Iride.

Although the total value of the litigation is around £340 million, each driver’s individual claim is relatively modest (circa £15,000), making group litigation a proportionate approach.

The claims arise from allegations that Uber unlawfully obtained a private hire vehicle operator licence by misrepresenting its operating model. It is said that this enabled Uber to compete directly with licensed black cab drivers while undercutting regulated fares, causing substantial financial loss between 2012 and March 2018.

The Preliminary Limitation Issue

Uber denies liability and argues that the claims were issued outside the six-year limitation period.

The Claimants rely on Section 32 of the Limitation Act 1980, arguing that time did not begin to run until they could reasonably have discovered the relevant facts, which they say occurred in June 2018 following a licensing appeal hearing.

The court has ordered that limitation be determined at a standalone five-day preliminary trial. A representative sample of 20 Claimants (10 chosen by each side) will be used to assess when sufficient knowledge arose. If the Defendants succeed, the litigation may conclude at that stage.

The Costs Budgeting Decision

A significant procedural issue to be determined was whether costs budgeting should apply.

Although claims valued at £10 million or more are ordinarily excluded from the costs management regime, the court retains discretion. The Defendants sought to disapply budgeting, relying on the overall high value of the claim, the existence of litigation funding and ATE insurance, and the alleged additional burden budgeting would impose.

The Claimants argued that, despite the aggregate value, the case is fundamentally a mass claim by individuals of limited means. They required clarity regarding potential adverse costs exposure and future funding requirements.

The Court agreed with the Claimants. While acknowledging that very high-value claims are generally unsuitable for costs management, this case was considered materially different. The modest individual claims and group structure justified greater costs oversight and transparency.

Why This Matters

This decision reinforces that the £10 million threshold is not decisive. Courts will look beyond the headline value of proceedings and consider the nature of the parties and the practical impact of costs exposure.

In large-scale group actions involving individuals with limited financial resources, costs budgeting may be viewed as an important tool to promote fairness, proportionality and effective case management and there are steps you can take ahead of the first CMC if you consider a CMO to be useful in your case.

Katie Spencer is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors and can be contacted on 07741 988 925 or at Katie.Spencer@clarionsolicitors.com.

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

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.

From Millions to Nil: The Stark Warning in Winros v Global Energy

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In a judgment handed down on 19 December 2025 in the case of The Winros Partnership v Global Energy Horizons Corporation [2025] EWHC 3362 (Ch) (19 December 2025), Mr Justice Marcus Smith upheld a decision of the Senior Costs Judge Gordon-Saker in an assessment under the Solicitors Act 1974 to assess bills totalling circa £6 million at nil. The decision focusses on the circumstances in which a solicitor can terminate a CFA and preserve the right to claim fees from a client.

 

Background

The dispute arose from a long-running dispute between The Winros Partnership (formerly Rosenblatt Solicitors) and their former client, Global Energy Horizons Corporation. Winros had acted for Global Energy under a series of CFAs, which typically provided that the solicitor was only paid only in the event case succeeded.

However, the relationship deteriorated before any success was achieved under the last CFA. Winros terminated the retainer by accepting Global Energy’s repudiatory breach rather than relying on an express termination clause in the CFA.

After the retainer was terminated, Winros delivered a bill for circa £6 million, arguing it should be paid for the work they had done up to the point of termination. Winros also issued a claim in the Chancery Division for damages in relation to the termination of the CFA. Global Energy subsequently asked the court to assess the bill under Section 70 of the Solicitors Act 1974and the claim in the Chancery division was stayed pending the outcome of the assessment.

What the High Court Decided

On appeal from the Senior Costs Judge’s decision in the Senior Courts Costs Office, Mr Justice Marcus Smith upheld the assessment that Winros was not entitled to any payment and that the bill was to be assessed at nil.

Winros chose to terminate the CFA by accepting Global Energy’s repudiatory breach rather than invoking the contractual mechanism in clause 14 (which would have entitled it to fees for work done). Choosing a common law termination meant the contractual protections for payment on termination did not apply.

Furthermore, Winros argued they should have been paid on a quantum meruit basis, which is a restitutionary claim for the value of work done. However, the Court agreed with the lower court that as the CFA had already clearly set out the consequences of early termination, there was no “total failure of basis” that would justify unjust enrichment. Simply put, the contract already articulated what was to happen, leaving no gap for restitution to fill.

The Judge also commented (albeit obiter) that the detailed assessment procedure under the Solicitors Act 1974 was a regulatory process for reviewing bills, not a forum to decide standalone restitutionary claims. Those should be pursued in separate proceedings if genuinely arguable. Therefore, a detailed assessment proceeding was not the appropriate course of action.

The decision highlights the fact that courts will strictly uphold the terms of a carefully drafted CFA, particularly clear provisions on termination and payment that allocate risk with certainty—even if that results in a solicitor going unpaid. It highlights the critical importance of how a solicitor terminates a retainer, as terminating under contract versus at common law can dramatically affect entitlement to fees, with the wrong approach potentially forfeiting enforceable payment rights.

Overall, the judgment serves as a reminder that in CFAs, both procedural compliance and substantive terms are decisive in determining financial outcomes.

Ujjaini Mistry is a Paralegal in the Civil and Commercial Costs Team at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com.

PI Trusts and Statutory Care Funding: Clarity for Deputies

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.

No Costs Recovery in Failed Deputyship Case Where P Had Capacity

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The Court of Protection has determined that it should not make a costs order against a Protected Party (P) who was the subject of a failed application by a professional Deputy to be appointed to handle his affairs.

This decision offers some important guidance on costs in Deputyship Applications, particularly when an application ultimately fails because the person concerned is found to have capacity.

Background

  • A professional Deputy applied to be appointed as property and affairs Deputy for a vulnerable adult. However, a section 49 report later confirmed that P did, in fact, have capacity.
  • P sustained frontal lobe damage more than 20 years ago following an assault, which has a mild impact on his executive functioning, compounded by excessive alcohol use. The Deputy made a COP1 application seeking appointment as a professional deputy for P after a referral by City of York Council, who believed P lacked capacity to manage his affairs. But a later medical report found he had the capacity to manage his property and affairs.
  • The Deputy appealed against the decision made by the District Judge who dismissed the application and made no order for costs, meaning the Deputy could not recover any of their expenses.

The Appeal

Harris J allowed the appeal in part, finding that the District Judge had misapplied the law on costs. Harris J found that the District Judge had made a mistake on costs by failing to apply the general rule that in property and affairs Deputyship applications costs shall be paid by P or charged to P’s estate (rule 19.2, Court of Protection Rules 2017) (SI 2017/1035)) (COP 2017). The District Judge had also failed to consider the grounds for departing from this with reference to the factors set out in rule 19.5 of the COP 2017.

Reassessing the Costs Position

  • Harris J reconsidered the matter from the start. While confirming that the general rule should be the initial benchmark, the Judge stressed that it is not absolute. There is a strong public interest in bringing appropriate applications before the Court of Protection, but that alone does not guarantee cost recovery for applicants.
  • Harris J concluded that as a matter of natural justice, “it may appear perverse that P should pay the costs of the Deputy – who is a complete stranger to him – for an application he did not invite, always opposed, had no choice but to respond to, and ultimately was successful in defending.

In reaching the decision, the judge focused on two key factors:

1.    P having no choice but to respond to litigation he did not invite but being successful in defending the application and, as a vulnerable adult, having no way to protect himself against any costs exposure.

2.    The professional Deputy choosing to bring and pursue the application and being in a position to assess litigation risks.

Outcome

  • Balancing these elements, the court concluded it was fair and just to depart from the general rule.
  • Harris J concluded that the application to be appointed as Deputy ultimately failed and it was the responsibility of the professional Deputy to mitigate any costs exposure.
  • Where an application has been made by a professional Deputy on referral from a local authority, the court suggested that the local authority could consider assuming the costs burden through a contractual arrangement with the Deputy, instead of imposing the burden on vulnerable adults.
  • This costs decision shows that courts are prepared to depart from the general rule on costs where there is good reason to do so.

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