Court of Protection Court Fees: An Update

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.

 

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What Costs Are Reasonable for a Deputy? JR v Sheffield Teaching Hospitals NHS Foundation Trust provides an explanation.

At a glance, the costs of a professional Deputy may seem expensive. However, the level of knowledge and work undertaken by a Deputy justifies these costs, especially in a case where the award was of substantial value. Once broken down, the costs of a Deputy are reasonable and can be justified.

Case summary

The Protected Party is a 24-year old with severe cerebral palsy. He suffered intracranial haemorrhage and brain injury following a traumatic premature birth and during a breech delivery. His litigation friend brought a clinical negligence claim on his behalf, arguing that the Protected Party’s injuries could have been avoided by a caesarean delivery. The Defendant accepted liability as the brain injury could have been avoided.

At the settlement hearing, some heads of loss had been agreed, but the costs of the professional deputy remained in dispute.

All parties accepted that the Protected Party lacked capacity to look after his own financial affairs, and predicted that this would be the case for the remainder of his life time. Therefore, a Professional Deputy was to be appointed; the cost of which continued to be argued.

It was deemed that although the Protected Party’s parents were supportive, it was not appropriate for them to administrate the Protected Party’s financial and property affairs. They had stated that they wanted to work alongside the Deputy, not against them. The Protected Party had some level of understanding and communication, so the Deputy was obliged to liaise directly with him.

What is considered reasonable for Deputyship costs?

For annual management

Year Claimant Costs Defendant Costs Award
1 30,605 plus cost of 2 visits 14,000 inclusive of 2 visits 30,000 inclusive of visits
2 21,492 plus cost of 2 visits 9,000 inclusive of 2 visits 20,000 inclusive of visits
3 17,040 plus cost of 1 visit 8,000 inclusive of 1 visit 15,000 inclusive of visits
4 17,040 plus cost of 1 visit 8,000 inclusive of 1 visit 15,000 inclusive of visits
5 onwards 11,232 plus cost of 1 visit 7,000 inclusive of 1 visit 10,000 inclusive of visits

The parties agreed that for extras such as transfers of Deputies, Wills, co-habitation or pre-nuptial agreements and “crisis payments”, a further £38,160.00 was reasonable.

The Judge allowed a total of £898,993.00.

This judgment can then be compared to the PNBA Facts & Figures 2017/18 (pages 258-288) whereby this outlines what could be classed as reasonable when awarding damages to cover the cost of the claimants Deputyship fees. Please refer to the table below.

Year and Expected Work to be Undertaken During the Deputyship Management Estimated Costs
Deputyship Application £6,638
1st Deputyship Year £32,570
2nd Deputyship Year £23,666
3rd Deputyship Year £19,775
Thereafter annual costs of £15,959 x 21.28 £339,607
Applications for appointment of new Deputy (x2) £7,588
Statutory Will Application £14,538
Contingency for crises £6,360
Preparation of tax returns £600 p.a x 24.28 £14,568
Winding up – single payment £1,800
 

 

Total Costs

 

 

£467,110.00

Finally, it’s noteworthy that all Deputyship costs are assessed by the Senior Courts Cost Office and the fee earners are regularly limited to the SCCO Guideline Hourly Rates whilst costs are awarded for Deputyship work, this is further scrutinised on assessment based on what is reasonable, proportionate and necessary in the Protected Party’s best interests.

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

 

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.

All you need to know about Counsel’s Fees in COP – How are they assessed?

Deputyship management is not always plain sailing, and on occasions, professional Deputies may be instructed to take on a case whereby the background is complicated, the circumstances are unusual and where Counsel are required to progress the matter. We have investigated the general rules applied when Counsel’s’ fees are to be assessed, and here is everything you need to know.

On what basis are the reductions made?

Firstly, it is important to recognise that in Deputyship matters, all costs are open for assessment. When a Deputyship Order is issued, it provides the authority for the professionals involved in the case to have their costs assessed. This includes the Professional Deputy, Counsel and in some instances, if a translator is required, their costs would also be subject to assessment.

What do the SCCO look at when deciding whether Counsel’s fees should be allowed?

Following a conversation with an experienced Costs Officer, advice was obtained regarding what aspects they consider when reviewing Counsel’s fees, once a bill of costs had been submitted for assessment. As there are no clear “black and white” guidelines for the assessment of Counsel’s fees, the Costs Officers are able to use their discretion on a case by case basis to review what would be a reasonable and proportionate amount to allow. Approximately, £300.00 per hour is allowed for a hearing, and £250.00 per hour for general work, however based on the complexity, volume of work undertaken, geographical location of Counsel and the breakdown of work outlined on Counsel’s fee note, these hourly rates could be revised by the Costs Officer.

It is important to note that it is your responsibility to work with your costs provider to include a detailed narrative within the Bill of Costs, explaining and justifying Counsel’s fees and involvement. For example, the Costs Officer would question why a Leeds based firm would instruct a London based Counsel. Details of the facts of the case, any hearings that have taken place, and the necessity of the work conducted should be included within the bill. Furthermore, when the bill is submitted for assessment, a Counsel’s fee note should be provided with the Bill of Costs. A further point to take into account is that not all Counsel’s fee notes are detailed enough, and therefore this increases the importance of including information relating to the complexity and background of the case when preparing the Bill of Costs.

A general understanding is that if Counsel had claimed for overall “refreshing themselves on the case” as they have not worked on the matter for a prolonged period of time this would not be allowed upon assessment as it would be deemed disproportionate and unreasonable.

Are the Deputyship firm expected to cover the reductions?

Counsel and professional Deputies are both aware that their costs are to be assessed and therefore, they are also aware that their costs could be reduced upon assessment. It is recommended for Counsel and the professional Deputy to make an agreement before the Bill of Costs is sent for assessment, whether the Deputy’s firm would cover the shortfall if reductions are made, or Counsel agrees to refund the reductions. Secondly, it was advised to wait until the Bill of Costs has been assessed before settling Counsel’s fees.

Do Counsel have a right to dispute the reductions?

If Counsel’s fees have been reduced upon assessment, they have a right to dispute the decision. This would be done in the format of a Request for Reassessment, prepared by your costs provider, outlining the reasons why you disagree with the reductions made and evidence in support of this.

It is noteworthy that Counsel are considered to be an “interested party” and therefore the professional Deputy would have to serve a copy of the provisionally assessed Bill of Costs on Counsel, and receive confirmation that they accept the amount allowed before the SCCO will issue the Final Costs Certificate, which provides authority for the Deputy and Counsel to be paid.

If you have any queries, or require any further information then please do not hesitate to contact Georgia Clarke at georgia.clarke@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.

Court of Protection Costs – What happens after the death of P?

Upon the death of the Protected Party, the Deputy’s authority under the First General Order seizes with immediate effect. Once the matter is transferred to the Executors of the Estate, the Deputy can agree their costs directly without a need for assessment, if possible, which will generally save the Protected Party money overall, without the need for the assessment process. If this is not possible, it may be necessary to apply to the Court for the costs to be assessed.

The interim work and the costs of the Deputy bringing the matter to a conclusion following the death of the Protected Party have been questioned over the years, as there has been very little guidance on this issue. In many cases, there is reasonable and necessary work involved in preparing the case for the Executor to thereafter deal with the Estate, however, what is a reasonable sum for this work?

Following correspondence with the Senior Courts Costs Office (SCCO), the following change has been made to the assessment procedure with immediate effect. The SCCO may now allow ‘reasonable costs’ (post death of the Protected Party) in order that the Deputy can finalise his/her involvement in the matter. The SCCO have indicated that such costs should not be expected to exceed £1,500.00 +VAT.

As a result, where it appears that the post-death profit costs exceed £1,500.00 +VAT, the Deputy will require the authority to assess that part of the Bill of Costs. Costs below this amount are likely to be deemed reasonable on assessment but are, of course, subject to the usual assessment process and will be allowed based on what was reasonable, necessary and proportionate in the circumstances.

If you have any queries relating to post-death costs in Court of Protection cases, please do not hesitate to contact Stephanie Kaye.

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