Court of Protection Costs – Types of Assessments for your Costs.

The previous blog in this series focused on the process of what goes into a Bill of Costs in the Court of Protection world. This blog will instead look at the process of an assessment in the Court of Protection and the different types of assessment that can occur.

Firstly, authority for the cost’s assessment must be established, as all Orders as to costs are at the discretion of the Court of Protection. There are three main methods of evaluating costs; agreed costs, fixed costs and summary/detailed assessment of Costs.

  • Agreed Costs

These kinds of costs Order are not regularly available in Court of Protection cases. As a principle, all bills of costs must be assessed, except where fixed costs are available. However, the Court may authorise parties to agree costs, where appropriate to do so. This is often used upon the death of a Protected Party whereby the Deputy is expected to agree costs with the Executor of the estate.

  • ­Fixed Costs

­Found within Practice Direction 19B, fixed costs are available to solicitors and professionals acting as Deputy. The general rule is that costs of the proceedings should be paid by P or charged to their estate, but this rule can be departed from.

In Cases where fixed costs are not appropriate, professional Deputies may, if preferred, apply to the SCCO for a detailed assessment of costs. However, this does not apply if P’s net assets are below £16,000. In these cases, the option for detailed assessment will only arise if the Court makes a specific order.

  • Detailed Assessment

The detailed assessment of costs under Orders or Directions of the Court of Protection is dealt with in accordance with the Civil Procedure Rules. Professional Deputies should lodge a request for detailed assessment with the SCCO (not the Court of Protection or the Office of Public Guardian) using the N258B (request for detailed assessment), accompanied by:

  • The bill of costs;
  • Documents giving the right to detailed assessment;
  • Copies of all the orders;
  • Fee notes of counsel or experts;
  • Details of other disbursements;
  • Postal Address of any person who has a financial interest in the outcome of assessment;
  • Relevant assessment fee (£115 or £225);
  • The OPG105 (if applicable).

Part 27 of the Practice Direction 17.2(2) states that cases over £100,000.00, complex or other cases are to be dealt with by a Master. The relevant papers in support of the bill must only be lodged if requested by the Master.

Once the bill of costs is lodged in the correct manner, the Costs Officer will review the bundle of documents and assess the costs. The Costs Officer will review the bill of costs alongside the files of papers and decide whether costs have been reasonably, necessarily and proportionately incurred, making reductions, where necessary based on relevant case law and judicial decisions. The bill of costs is thereafter returned to the Deputy for consideration.

Clarion can also assist with requests for reassessment if the outcome is not as expected. If you would like further information about this process, then please do not hesitate to get in contact.

Joshua Sidding is a Paralegal in the Court of Protection Team of the Costs and Litigation Funding Department at Clarion Solicitors. You can contact him at Joshua.sidding@clarionsolicitors.com and 0113 222 3245, or the Clarion Costs Team on 0113 246 0622.

You can also take advantage of our free telephone advice service – available outside of office hours – by calling 07764 501252.

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Tips for Recoverability

All COP Lawyers know that the SCCO Guideline Hourly Rates can be frustrating when trying to recover all of your costs as opposed to other areas of law in which higher rates can be charged. As a result, some believe it to be unreasonable that a Costs Officer ca reduce the costs down even further on assessment. Here are some things that we have seen helps improve the recoverability of your fees.

Using 3 minutes to arrange and make payments. I know you’re told this on every assessment you’ve had back from the SCCO but ignoring it isn’t going to make your recoverability any better. The Costs Officer isn’t going to change their mind. Arranging payments are viewed as an office overhead so its best practice for you to delegate this work to a Grade D fee earner and limit the time spent and charged for to 3 minutes. The Costs Officer is going to see the effort being made and as a result, this will help with your reputation with the Court and will improve your Bill assessment outcomes.

You, like all other COP Lawyers dislike the low guideline rates that you’re restricted to. If there are any matters of complicated work, outline this to us or your other Costs Draftsperson and request enhanced rates on that particular issue. We have found that there is a higher chance of success for an enhanced rate when it is applied specifically to a complex and difficult issue than when it is applied to the whole bill. Doing this allows the Costs Officer to see specifically what was difficult and justifies why you are requesting the additional fees. We are often proactive in applying these for you when a complex matter arises, such as jurisdictional differences, the requirement of language interpretations, abusive Clients etc.

The Costs Officer will reduce or remove a second fee earner attendance at a meeting in accordance with the decisions made within the Matter of Garylee Grimsley (December 1998). Therefore, it is incredibly important for your recovery that the dual attendance is explained and justified in your attendance note. Just a line to outline why the second person was required will do, were they the main fee earner alongside the Deputy? Did the Client or Client’s family request they be present? Was the Client abusive or dangerous? It may be allowed at a reduced rate however it is

As simple as this one may sound, keep your file in chronological order and easy to get through. The last thing you want to do is make the Costs Officers life difficult when they’re assessing your costs.

Furthermore, ensure that you accurately time record your work. We appreciate that different firms have differing levels of technology available, but this need not be the most complex and time consuming system. If you do have the option to tag your time entries, this will help all parties involved when it comes to the costing of the work. Bulk time recording will cause difficulties so avoid this as much as possible. Also, ensure that the time spent is reasonable from the outset and delegate where appropriate. However, please don’t self-edit your time because if this is later reduced on assessment you will have doubly been reduced where not necessary.

Additionally, including details of the Client’s financial position assists the Costs Officer in ensuring the work undertaken is in proportion to the level of assets held and increases the chances of your time being recovered, especially in circumstances where the Client’s assets are significant and various financial schedules and reviews are required. See https://clarionlegalcosts.com/2015/06/09/how-valuable-is-the-protected-partys-estate/ for further information on this point.

I hope this helps and if you have any further suggestions or questions I would be happy to hear and discuss them further at bridie.sanderson@clarionsolicitors.com

The Senior Court Costs Office Guide – how to get paid for your work!

A recent publication of the Senior Courts Cost Office Guide was produced as a result of various changes in the way legal costs are being assessed. However, in respect of Court of Protection costs, not a great deal has changed since its inception. As a result, the 2018 guide brings the perfect opportunity to review the position on Court of Protection costs, getting paid for your work and the rules to follow.

Initially, Section 25 of the Mental Health Act 2005 created the weight of the Court of Protection, which protects the property and financial affairs of persons who lack the capacity to manage their own.

There are three methods for recovering your costs; Agreed costs, Fixed costs and Summary Detailed Assessment of costs.

Most Orders will contain a clause entitling the professional Deputy to be paid for the work undertaken. It will provide the option of taking fixed costs or having the costs assessed, subject to the terms of the Order.

Agreed Costs

As set out in the Guide, Agreed Costs are not generally available and would only be necessary in the circumstances that fixed costs do not cover the work undertaken and it would not be appropriate to undertake a costs assessment. For example, following the death of a Protected Party, they are often required to attempt to agree their costs to bring the matter to a smooth conclusion.

Fixed Costs

Practice Direction 19B supplementing Part 19 of the COP Rules 2017 sets out fixed costs that may be claimed by Solicitors and office holders in public authorities acting as Deputy for the Protected Party. However, the Court has the discretion to apply the rules to other professionals such as accountants and case managers acting as Deputy. The general rule is that the costs of the proceedings should be paid by the pp1 or their estate unless a Court Order provides for an alternative. Where a Court Order or direction provides for a detailed assessment, the Deputy can choose to take fixed costs in lieu.

Detailed Assessment

Professional Deputies should lodge a request for Detailed Assessment with the SCCO by way of N258b form. Accompanied by:

  1. the Bill of Costs
  2. the document giving right to Detailed Assessment
  3. copies of the Court Orders
  4. any fee notes of Counsel and/or expert as claimed within in the bill
  5. Written evidence of any other disbursement exceeding £500
  6. The relevant lodgement fee (currently £225.00 for detailed bills over £3,000, £115.00 for short form bills under £3,000)
  7. A copy of the OPG105 relating to the time period claimed within the Bill of Costs

In cases with costs exceeding £100,000.00, they are to be dealt with by a Master, and the relevant papers in support of the bill must only be lodged when requested.

It should be noted that, unlike litigation costs, a Court of Protection bill MUST NOT be filed electronically.

Once the assessment has taken place, you have 14 days from the date of receipt of the assessed bill to raise an appeal if dissatisfied. If following the review, you remain dissatisfied at the outcome, the SCCO will arrange a date for a oral hearing before a Master. In practice this is usually by telephone or letter.

After completion of the assessment, the Professional Deputy must complete the bill summary on the bill certifying the castings as correct, returning the original bill to the SCCO to enable them to issue the Final Costs Certificate, which is your authority to be paid.

Payments on account

Section 6 of the COP Practice Direction 19B states that Professional Deputies who elect for detailed assessment of the annual management charges can take payments on account for the first, second and third quarters of the year which are both proportionate and reasonable to the size of the estate. The interim bills must not exceed 25% of the estimated charges, so no more than 75% for the annum. The details of the interim bills received must be outlined within the Bill of Costs submitted to the SCCO.

If you require any further information, please contact bridie.sanderson@clarionsolicitors.com or call me on 0113 336 3350

 What do Court of Protection Costs draftsmen actually do?

The legal world of costs is not the biggest or most well-known, and it’s often the case that many lawyers aren’t sure what Draftsmen actually do. This is especially true if the costs are related to the Court of Protection, as it’s another area that isn’t particularly familiar to many, with some potentially not even knowing which costs are assessed, or how.

The previous blog in this series focused on the Bill of Costs and the process of claiming your costs and ultimately getting paid. This blog will instead breakdown the process of what goes into a Bill of Costs within the Court of Protection world and how the Costs Draftsmen – and women – here at Clarion can help.

Process for creating a Bill of Costs

  1. Arranging the file

Once we receive a file from one of our clients, it’s opened within our case management system and we assess how long the Bill will take to draft and which one of the Draftsmen would be best suited to do it. We review various points including: the specific needs of the client, the amount of work in progress (WIP) on the file received, the complexities involved, and the workload of the Draftsmen involved to determine who in our team is best placed to prepare the Bill of Costs. There are 10 of us who deal with Court of Protection costs on a daily basis.

  1. Drafting the Bill

Thereafter, once the file is allocated, our job is to match up entries on the file and billing ledger and cost the file as appropriate. At Clarion, we review the file of papers on a page by page basis, for completeness. The costs are calculated electronically to ensure absolute accuracy and we will make note of any issues identified, to be raised with the client. We are fully aware of the restrictions and court requirements as to what is and is not recoverable in Court of Protection cases. As a result, we will use our experience and discretion to put the bill of costs together in a way that the Court will be happy with, which is fundamental for our clients’ reputations.

  1. Reviewing the file and the Bill of Costs

Once the whole file is efficiently costed, the Draftsman reviews the file and ledger once more and notes any missing entries on the ledger that are not evidenced in the file. We also check if there are things within the file that could be included in the Bill of Costs, that the fee earner didn’t know could be recovered. If there is anything missing from the file, the client is informed, giving them the opportunity to provide the documents required, to ensure that a complete log of evidence is submitted to the Court.

  1. Collating and arranging the Bill of Costs and bundle

Once all the information is present and the Bill of Costs complete, Clarion prepares the Form N258B, which is a request for detailed assessment of the costs, if they are payable out of a fund. We also draft a comprehensive letter of advice, informing the client of possible reductions and guidance to improve costs recovery going forward. All documents are returned to the client, enabling them to easily submit them to the Court for assessment.

  1. The assessment

The matter is thereafter assessed by the SCCO on the Standard Basis, and Clarion will consider the outcome of the assessment, to determine if it is reasonable or not. Clarion can also assist with requests for reassessment if the outcome is not as expected.

If you would like further information about this process, then please do not hesitate to get in contact.

 

Joshua Sidding is a Paralegal in the Court of Protection Team of the Costs and Litigation Funding Department at Clarion Solicitors. You can contact him at Joshua.sidding@clarionsolicitors.com and 0113 222 3245, or the Clarion Costs Team on 0113 246 0622.

You can also take advantage of our free telephone advice service – available outside of office hours – by calling 07764 501252

Unusual Granting of an Order to Prevent the Protected Party from knowing the full details of his Personal Injury Settlement following an application made by his Professional Deputy.

In this personal injury case, the judge had to grapple with an unexpected question – should a Deputy, appointed to manage the personal injury payment made to a brain-injured claimant, be allowed to not tell the claimant the exact amount that was awarded to him?

The case of EXB v FDZ

The case of EXB v FDZ (2018) was very unusual in that it involved an application by the Protected Party’s professional Deputy, and his mother as Litigation Friend, to prevent the Protected Party from knowing the full details of his personal injury settlement, which was deemed to be in his best interests.

This was a complex matter, as the Court recognised that withholding such information inadvertently affected the Protected Party’s rights. Judge Foskett explained in his judgement that he had never come across this issue before and he called upon assistance from Ms. Butler-Cole as a ‘friend of the Court’.

The Protected Party

The Protected Party sustained orthopaedic injuries, alongside a severe brain injury following a road traffic accident. The Protected Party was a backseat passenger in a car driven by the First Defendant. The Protected Party was not wearing a seatbelt and his damages were reduced accordingly, following an admission of contributory negligence.

Why was it in the best interests of the Protected Party to withhold settlement info?

The applicants submitted evidence from both themselves and professionals which detailed the reasons as to why it was in the Protected Party’s best interests to withhold the settlement information.

The Protected Party’s neuropsychologist stated that “Such knowledge would translate and impact upon his behaviour”. It was believed that the Protected Party would become fixated by the sum of money, that it would lead to him being extremely vulnerable and placed into a situation where he was likely to be financially exploited. Interestingly, the Protected Party himself expressed to his Deputy and the Court that he would be better off not knowing the sum; however, he also stated that he was conned into making such a statement. Following the accident, the Protected Party was very impulsive, and he often became very anxious when it came to money, struggling to budget and often living beyond his means.

The Judge gave careful consideration to the evidence submitted, as well as reviewing the relevant legislation, such as the Mental Capacity Act 2005 and the UN Convention on the Rights of Persons with Disabilities (CRPD). Following this, the Judge held that the Protected Party lacked the relevant decision-making capacity, finding that it was in the Protected Party’s best interests not to be told the value of the reward. The Judge also considered whether it was within the scope of a normal Deputy Order not to reveal the sum; however, the Deputy argued that it would make the Deputy’s life more difficult if the Protected Party believed that he was personally withholding the information and it was considered more appropriate for the Deputy to state that the Court prevented him from doing so.

Costs of the application

The next issue that arose was in respect of the costs of the application. The Claimant sought the costs of the application to be paid by the Third and Fourth Defendants of the Personal Injury claim, as their tort had necessitated. The Third and Fourth Defendants objected to paying the costs. Their defence stated that “they should not be responsible for the costs because all of the issues between them and the Claimant were concluded by the Settlement which was approved in April 2018” and that this particular issue was a ‘solicitor/own client’ dispute. Within the remit of the initial Personal Injury claim, there was no claim for costs attributable to this issue within the Schedule of Loss and there was also the fear that there may be an “open-ended commitment to pay the costs associated with any repeat applications”.

As the issue had been dealt with under the Court of Protection, it was necessary to apply the Court of Protection costs rules. The general rule being that where the issue concerns financial matters, the costs of all parties are to be borne from the Protected Party’s estate (Rule 19.2). The Court does have a broad discretion to depart from the general rule, if circumstances made a different order more appropriate (Rule 19.5). In this case, the Third and Fourth Defendants had not been made formal parties to the application, but they had been provided with an opportunity to make representations regarding the Costs Order being sought.

Judge Foskett held that the costs were to be borne by the relevant Defendants, as the need to make the application arose directly from their actions following the injury caused to the Protected Party, therefore departing from the general rule.

It will be interesting to see whether there will be any similar applications and what the outcomes will be. The Judge has invited the appropriate bodies to consider these matters and decide whether a consultation on this issue will be required.

This blog was prepared by Danielle Walker who is a Costs Lawyer within the Court of Protection Team. Danielle can be contacted at Danielle.walker@clarionsolicitors.com

 

 

Can The Court of Protection Keep a Patient Alive?

It is well known, and often the cause of heated debate, that assisted suicide is illegal within the United Kingdom. If a person is terminally ill and wishes to die, that person would have no rights under UK law to end their life with dignity. However, recent case law suggests that there may be a slight shift in how the Court of Protection handles a terminally ill patient.

Recently, the Supreme Court judged that a 52 year old man (Mr Y) with an extensive brain injury should be allowed to die without Mr Y’s family being forced to apply to the Court of Protection. At the time of the application, Mr Y was receiving clinically assisted nutrition and hydration and although Mr Y had died at the time of the appeal, it was deemed necessary for the appeal to proceed due to the importance of the issues raised.

For clarity, once clinically assisted nutrition and hydration is withdrawn, a person is generally expected to survive no more than two weeks. Following on from the Supreme Court ruling, it has now been agreed that where the family and medical practitioners are in agreement, it is no longer necessary for an application to be made to the Court of Protection.

This decision had also been taken in another case where a woman (M) who had suffered with Huntington disease for over 25 years was permanently residing in hospital and was in a minimally conscious state. The Supreme Court judged that the clinically assisted nutrition and hydration was withdrawn and M died shortly after. Following the decision, Jackson stated “There was no statutory obligation to bring the case to court … A mandatory litigation requirement may deflect clinicians and families from making true best-interests decisions and in some cases lead to inappropriate treatment continuing by default. Indeed, the present case stands as an example, in that M received continued CANH that neither her doctors nor her family thought was in her best interests for almost a year until a court decision was eventually sought.”

However, it is worth noting that the decision in M related specifically to those living on life support, as opposed to all ‘right to die’ cases.

It is becoming clear that there is a shift appearing from the way in which those who are terminally ill are treated by the courts. Previously, an application to the Court of Protection would be required to make a decision on the care received, however, now it appears that the best interests of the terminally ill patient will be put first without the requirement of an application.

To what extent should the Court consider the Protected Party’s capacity (and wishes) to consent to sexual relations and contraception?

The Protected Party is a young woman with learning disabilities. She previously lived with her family but took part in a number of social and community activities. Concerns were raised, by reason, of her learning difficulties. She was vulnerable to sexual exploitation, pregnancy and sexually transmitted diseases. There is evidence that she was sexually assaulted, and it was reported that the police expressed concern that the Protected Party should not be unsupervised as she appeared to be a target for sexual exploitation.

The Protected Party has two children, who are in the care of her family. A few years ago, an application was made to the court for an order that the Protected Party be sterilised. This application was aborted and the decision was made to consider a long term method of contraception instead. The other main issue was the concerns regarding the Protected Party’s protection against sexual exploitation.

The expert evidence of a consultant psychiatrist was that the Protected Party lacked mental capacity to consent to sexual relations, to consent to contraceptive treatment and to litigate. It was also recommended that the Protected Party should be supervised at all times when in the presence of sexually active men. She received further education about sexual matters and the Protected Party was to undergo the insertion under general anaesthetic of a copper inter-uterine device (IUD). It was advised that the Protected Party would be sedated, and the IUD would be inserted without her knowledge. This contraception would last for 10 years.

During a lengthy hearing in 2012, Parker J made an order in which, having declared that the Protected Party lacked capacity to litigate and to make decisions with regard to contraceptive treatment, she further declared that it was lawful for the Protected Party (with or without her agreement) to undergo the insertion of a copper coil IUD, to receive a Depo-Provera contraceptive injection, to undergo a full sexual health screen, and to be subject to proportionate restraint if necessary, including sedation. Following the hearing, the Protected Party underwent the operation for the insertion of the IUD. No reasoned judgment was given at the hearing in 2012 and, in the event, no further hearing took place for several years.

In 2016, the Local Authority made an application to restore the proceedings, to revisit the question of the Protected Party’s capacity to engage in sexual relations. The proceedings were to assess and evaluate the clinical risks to the Protected Party’s health presented to her by any further pregnancy; to revisit the Protected Party’s capacity to consent to contraceptive treatment; to re-evaluate the options for Protected Party’s contraceptive treatment in view of the fact that the IUD inserted in 2012 has a life of approximately ten years; to reassess the best interests decision not to inform her of the fact of the insertion of the IUD in the light of any improvement of her understanding; and to authorise her Deprivation of her Liberty at her placement.

Following the preparation of a report on future care support by the CHT, it was agreed that the IUD should remain in situ until the end of its natural life. A statement from the social worker set out four options:

(1) option A(i) – the IUD remains in place, the Protected Party is not informed of its existence, and care and supervision remains at its current level;

(2) option A (ii) – the IUD remains in place, the Protected Party is not informed of its existence, but the level of care and supervision is reduced;

(3) option B – the IUD is removed without informing the Protected Party and the risk of sexual exploitation is managed “through social means” with the current level of care and supervision;

(4) option C – the IUD remains in place and the Protected Party is informed of this.

Having analysed the benefits and disadvantages of these options, the social worker decided option 2 was in the Protected Party’s best interests.

At the hearing in 2017, the three principal issues between the parties were as follows:

(1) Does the Protected Party have capacity to consent to sexual relations?

(2) If she does, what steps should be authorised to facilitate the relationship between the Protected Party and her boyfriend, or between her and any other person with whom she wished to have a sexual relationship?

(3) Is the proposed relaxation in supervision in her best interests? In addition, however, it was thought appropriate for the court to review wider issues concerning her treatment, including the question of whether it should continue to be covert or whether the Protected Party should be informed about it.

In addition, however, it was thought appropriate for the court to review wider issues concerning her treatment, including the question of whether it should continue to be covert or whether the Protected Party should be informed about it. As there remain a number of details within the draft order which the parties have been unable to agree, it was necessary for the judge to make an order outlining the best interests of the Protected Party in relation to her capacity – general principles, capacity other than sexual relations, her capacity to consent to sexual relations, contraception, covert treatment and her sexual relationships and supervision.

In this case, there are a number of arguments against retaining the IUD. It is a clear infringement of the Protected Party’s human rights and freedom. Furthermore, this infringement has been brought about without her knowledge and without providing her with any opportunity to express her wishes and feelings. In her oral evidence, the Care Agency manager said that she thought that the Protected Party would not want to keep the IUD if asked. Secondly, although the Protected has not been expressly asked about her wishes and feelings concerning contraception, she has consistently said that she does not want to have a baby at this stage. It was necessary to consider the psychological harm that the Protected Party may encounter if; the IUD was removed and she became pregnant again or if the IUD was removed without sedation. In this instance, it was decided that it is in the Protected Party’s best interests for the IUD to remain in place until the end of its normal ten-year span. At that point, further careful consideration will have to be given as to what contraceptive treatment.

It was directed for the level of sexual supervision of the Protected Party and her boyfriend should be relaxed slightly and reviewed at a further hearing once this has been considered in more depth. Finally, the provisions of the order relating to the IUD plainly involve a Deprivation of Liberty. A clause was included within the order that such a deprivation is lawful.

If you have any queries, please do not hesitate to contact Georgia Clarke or the team at COPCosts@clarionsolicitors.com