Tag: COP Costs

Increase to Court Fees

Stephanie KayeLeave a comment

The Government issued a public consultation on 22 March 2021. The Ministry of Justice is consulting on increasing some court fees in line with historical inflation dating from August 2016 to April 2021, or from the year the fee was last amended (capped at August 2016). The proposal is limited to fees which are under-recovering compared to the estimated cost of the service and to fees which are enhanced, meaning they can legally be set above the cost of service. The impacted fees are included in the following fee orders:

•            Family Proceedings Fees Order 2008 No 1054 (43 impacted fees);

•            Civil Proceedings Fees Order 2008 No 1053 (67 impacted fees);

•            Court of Protection Fees Order 2007 No 1745 (3 impacted fees); and

•            Magistrates Courts Fees Order 2008 No 1052 (20 impacted fees).

At the same time as increasing fees, the Government is also proposing to widen access to the Help with Fees scheme and make it more generous. This proposal includes inflationary uplifts to the income thresholds, including the couple and child premiums, in the Help with Fees scheme, backdated to August 2016. The proposal will widen access to and increase the generosity of the Help with Fees scheme. In particular, the extended scheme will benefit women, people from black and minority ethnic backgrounds, disabled people and younger people, who all feature disproportionately among low income groups.

The proposed fee increases will raise an estimated additional net income of £11-£17 million a year for HMCTS after fee remissions, including the proposed changes to Help with Fees, are applied. This will help to ensure HMCTS continues to have the necessary funding to complete its much needed and important activities. Given the current economic uncertainty and the difficulty in forecasting rates of inflation accurately at this time, the figures included in this proposal are indicative and will be revised, based on actuals, prior to the implementation of the revised fee. Therefore, this estimated income is subject to change.

Responses are welcomed from anyone with an interest in or views on the subject covered by this consultation. The full consultation is available at: https://consult.justice.gov.uk/digital-communications/increasing-selected-court-fees-income-thresholds. Responses are required by the 17th May and can be submitted via an online survey using the link above, via email: mojfeespolicy@justice.gov.uk, or by post to: Fees Policy Team, Ministry of Justice, 102 Petty France, London SW1H 9AJ.

Any questions regarding this consultation can be addressed to the Ministry of Justice Fees Policy Team (mojfeespolicy@justice.gov.uk).

Does the Mental Health Act need to be reformed?

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The Department of Health and Social Care has launched a consultation and White Paper on plans to reform the Mental Health Act. 

This follows a report released in 2018 that outlines that the Mental Health Act does not always work in the best interests of patients, their families and their carers.

The report sets out various recommendations to amend the Act so it does work in the best interests of individuals, in both practice and in law.

The Department of Health and Social Care is proposing a wide range of changes to rebalance the Mental Health Act, to put “patients at the centre of decisions about their own care and ensure everyone is treated equally.” 

The proposed amendments are based on the following principles:

  • choice and autonomy – ensuring service users’ views and choices are respected
  • least restriction – ensuring the Mental Health Act’s powers are used in the least restrictive way
  • therapeutic benefit – ensuring patients are supported to get better, so they can be discharged from the MHA
  • the person as an individual – ensuring patients are viewed and treated as individuals

The closing date for responses is 21st April 2021. The White Paper and consultation documents are at the website below.

https://www.gov.uk/government/consultations/reforming-the-mental-health-act

If you would like any further information of this, then please contact Scott on 0113 288 5688 or by email at scott.kemp@clarionsolicitors.com

Is it possible to claim payments at Grade C?

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In the case of Kirby & Others (2013) it was decided that arranging payments should be reduced and limited to 3 minutes at a Grade D rate. This is because the SCCO see that making payments is routine and traditionally, no higher rate or time would be allowed.

Clarion have recently received a Bill of Costs back from the SCCO where the Cost Officer has allowed making a payment at 6 minutes at Grade C. This is something that we have not seen or heard anything about prior to this Bill.

In this matter the Cost Officer has allowed 6 minutes at Grade C stating ‘Payment of invoices is 3 minutes @ Grade D. If completed or high value, 6 @ C can be given.’  The ‘high value’ is discretionary as to the Costs Officer’s views and no further guidance was given about this decision.

We suggest that Deputyship teams should delegate payments to Grade D fee earners wherever possible, but bear this decision in mind if a high value transaction is required. It might be reasonable for a Grade C fee earner to make high value payments and the SCCO may allow this time at 6 minutes.

Scott Kemp is an Apprentice Paralegal in the Costs Litigation and Funding team at Clarion Solicitors.

You can contact him on 0113 288 5688 or scott.kemp@clarionsolicitors.com

Should P continue to have contact with her abusive partner?

Casey McGregorLeave a comment

In a recent case, A County Council v LW & Anor [2020], an application was brought by a Local Authority in relation to the Protected Party’s capacity. The Protected Party was 60 years of age, and three years prior to the application, the Protected Party was admitted to a unit. The Protected Party was initially detained under the Mental Health Act 1983. When the Protected Party was admitted to the unit, she was described as being in a ‘truly parlous condition’ and it was clear that her personal hygiene was neglected.

In 1991, the Protected Party had been diagnosed as having Bipolar Affective Disorder. However, the main concern in relation to the Protected Party’s life seemed to be the long term relationship she had formed. The judge described the relationship as being abusive, exploitative, coercive and wholly inimical to the Protected Party’s welfare. It became clear that she was emaciated due to her partner restricting her food intake, limiting her to one potato and salad per day. The abusive partner had also forbidden the Protected Party from wearing underwear and engaging in activities she enjoyed, such as playing the piano, in order to meet his distorted perceptions on religion.

Whilst the Protected Party had been residing at the unit, her partner had still been living in her property, which had been neglected and was in a state of disrepair. The Protected Party’s partner has declined various requests from the Local Authority for them to meet with him or to assess the property.

The entire team who surrounded the Protected Party had a shared view that she would benefit considerably from a complete cessation of contact with her abusive partner. An application was made to decide where she should live and whether or not she should continue to have contact with her abusive partner.

If the Protected Party was allowed to return to her property with the partner, it was considered that the Court would be exposing her to a regime of controlling and abusive behaviour which was certainly not within her best interests. It was agreed by the Court that contact should be ceased between the Protected Party and her abusive partner and that the Local Authority and the Property and Affairs Deputy would progress the matter in order to evict the partner from the Protected Party’s property, in her best interests.

Please contact Casey for more information at casey.mcgregor@clarionsolicitors.com

5 reductions in COP assessments that you need to know about!

Casey McGregorLeave a comment

At Clarion, we deal with over 2,000 COP bills of costs per year and we monitor common reductions. Every case is completely different, but you do not need to simply accept the reductions made to your bill of costs and you can request a reassessment, if appropriate to do so. We recognise the hard work that COP practitioners put into their matters and are passionate about working with our clients to help them recover fair and reasonable costs. Based on our experience, we have identified 5 recent reductions which we think should be on your radar.

Document time reductions

It is common for time spent on documents to be reduced or struck out where the Costs Officer considers it to be excessive, but it may be necessary to challenge these reductions. If you can provide reasonable justification as to the time spent, the necessity of the task at hand and the grade of fee earner undertaking the task, then it can be beneficial to provide more information to the Costs Officer and request that the reduction is reconsidered. A good example of this is time relating to the OPG102 in exceptional cases, where the Protected Party’s liquid assets are high or their estate is particularly complex.

Contact with internal teams

It is not uncommon for the Deputy to require support from another area of expertise in a management period or application. Examples could include the Conveyancing Team in respect of property matters, or the Employment Team regarding the directly employed care staff. The contact with internal teams is commonly reduced as ‘inter-fee earner’, however it is often essential in progressing the matter. If an external team were to be instructed, the time would likely be much more costly, therefore the instruction of the internal team can often be in the Protected Party’s best interests. It can be beneficial to advise the Costs Officer of the situation and the necessity of the internal teams’ assistance, to allow them to reconsider reductions appropriately.

Lack of evidence

Whereby the Costs Officer strikes out time due to the ‘lack of evidence’ or ‘no file note’, this should be challenged by simply providing the relevant file notes. Evidence for all work done should be on file, but if something is missed, this can be provided retrospectively which allows the Costs Officer to reconsider the time they disallowed.

Excessive contact with the Protected Party/Family/Case Managers

A common reduction is excessive contact with the Protected Party, their family or the Case Manager.  A high level of contact may be necessary for a number of reasons. The Protected Party might call the fee earner very regularly, or there might be issues with directly employed care team which would be vital for the Case Manager to deal with, communicating with the Deputy to resolve them properly, or a family member may act as the main point of contact. If there are reasons behind the high levels of  contact, they should be set out to the Costs Officer to justify it and show that the time spent was proportionate to the matter. We regularly see blanket reductions to high levels of contact, which can often be resolved during reassessment in the right cases.

Travel Reductions

Reductions to travel time aren’t common, however they do still occur. Travel reductions should be challenged if they are not reasonable. The Protected Party can often live very far from the Deputy and if the meeting is reasonable, the mode of transport is appropriate and the time spent is justified, a reduction of this kind should not be accepted.

We are happy to advise any professional Deputy who is unhappy with the outcome of their assessment and continue to work with law firms nationally to help them recover fair and reasonable costs. Please contact Casey for more information at casey.mcgregor@clarionsolicitors.com

Court of Protection Court Fees: An Update

Laura SugarmanLeave a comment

In order to have a bill of costs assessed, it is necessary to pay a Court Fee to the Senior Courts Costs Office (SCCO). Depending on the type of the bill, the fee amount varies. Currently, within the Court of Protection, the cost to have a bill assessed is £225 for a detailed bill and £115 for a short form bill of costs. A short form bill is a bill with profit costs up to £3,000 and a detailed bill of costs is a bill with profit costs above £3,000.

From the 22nd July 2019, these fees are due to change. By way of The Court Fees (Miscellaneous Amendments) Order 2019 there is due to be a reduction to the Court Fees due to have a bill of costs assessed. S4 (3)(a) of the Act states that the fee for filing a bill of costs to be assessed will be £85.00. This is dramatic change within the rules and something that will affect all professional Deputies who wish to have their bill of costs assessed, making it cheaper to do so.

The most significant aspect of the Act is that going forward, there will be no distinction between fees for filing short form and detailed bills of costs. As stated, this will be taking place from the 22nd July 2019 and so all professional Deputies should be aware of this when sending any bills to the SCCO to be assessed on or after this date.

There will also be changes made to application, appeal and hearing fees for all Court of Protection matters. These can be found in s3 The Court Fees (Miscellaneous Amendments) Order 2019.

 

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

Stephanie KayeLeave a comment

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.

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

Tips for Recoverability

Stephanie KayeLeave a comment

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!

Stephanie KayeLeave a comment

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