Tag: cop

The COP E-Bill – the good, the bad and the technical

Stephanie Kaye1 Comment

The COP E-Bill has been in the pipeline for well over a year and the E-Bill pilot will start on the 1st of November 2022. Stephanie Kaye shares what practitioners need to know about the change, including when we can expect it and what it means practically for deputies.

When will it go live?

The consultation for the E-Bill concluded in May 2022. It was then necessary for the E-Bill working group to meet and discuss the comments made about the E-Bill to decide if any further changes or tweaks were required. The working group consists of Costs Judge Leonard, Costs Officer Leggett, Costs Officer Prendergast, Richard Benn from CostsMaster, Andrew McAulay from Clarion, Stephanie Kaye from Clarion and Ian Gibson from Irwin Mitchell.

Many useful observations were made during the consultation which needed to be incorporated or changed in the latest version of the COP E-Bill. This is a time-consuming process, coupled with the Costs Officer training needed at the SCCO, meaning that the final E-Bill will launch in pilot form in the autumn on the 1st of November 2022. Once live, the E-Bill will be accepted by the SCCO for assessment but will not yet be compulsory.

Electronic bills in Court of Protection cases – Pilot in the Senior Courts Costs Office | Courts and Tribunals Judiciary

What is so different about the E-Bill?

Simply put, the E-Bill is in Microsoft Excel format compared with the Microsoft Word format of the traditional COP Bill. Excel is much better for calculations and therefore provides a slicker, fresher alternative to the usual assessment whilst being equally as accessible by all. The benefits of the E-Bill include things like typed comments from the SCCO as to the reductions made, making it very straightforward to follow, and automatically recalculated Bills allowing you to instantly see what has been allowed on assessment.

There is a new requirement to tell the SCCO about the Protected Party’s asset value. This is to ensure that there are sufficient funds to meet the outcome of the assessment, but it also allows the Costs Officer to consider if the costs incurred are proportionate to the value of the estate – something that wasn’t quite so transparent before.

If it’s a general management year, you/the Draftsperson are required to input the OPG105 estimate in the Bill of Costs. Again, this is much more transparent and will allow the Costs Officer to easily see if you have exceeded your predicted costs, potentially making your costs vulnerable on assessment.

We are all familiar with some of the illegible comments of Costs Officers in the current Bills as we know them. The E-Bill provides a space for the Costs Officers to type their comments and justification regarding the reductions made and after assessment, a table of findings (Tab 15) will be populated with the relevant reductions which apply to your case. This not only means that you know what is reduced, but also why.

There are also several handy things to note about the E-Bill, too. This has been developed to be very user friendly and efficient, with many, many meetings in the background to test different functions and ensure it works. One useful tool is that there is an email address box on the front of the Bill. This is the email that the assessed Bill of Costs will be sent to at your firm and it’s up to you to choose a suitable address, meaning that there are no waiting times following the outcome, speeding up the process.

It is expected that the E-Bill will be signed electronically as it is not possible to add a wet signature to an E-Bill. Tab 11 is the traditional certificates page that we are all familiar with.

Practically, how does it work?

As for the content of the Bill, this remains largely unchanged, however it is presented in a different way. Tab 6 of the Bill shows all work undertaken collectively in various columns, collating the previous documents schedule and party work that we are used to seeing separately. This can look quite overwhelming, particularly if it’s a bigger case, but the filter options will assist the Costs Officer in narrowing down what exactly they are looking for. One addition within the E-Bill is the requirement for an activity code to be selected for each entry of time by the Draftsperson, allowing the Costs Officer to filter by that activity on assessment to see alternative filters of the work undertaken (for example, they may wish to filter by ‘travel’ allowing them to see the overall cost of travel incurred, regardless of which party it is accrued against). A table of what these activities are is in Tab 16. The E-Bill is much more flexible than the previous Bill in this regard, as there are multiple categories which could be used to filter specific work types or parties, allowing the Costs Officer to undertake a more robust assessment.

The E-Bill is colour coded in columns, separating the columns of the work as claimed and which columns are exclusively for the Costs Officer’s use. The blue columns (time allowed, fee earner allowed and fee earner rate allowed) can be edited by the Costs Officer as they see fit. Again, the transparent nature of the E-Bill will then clearly show what was previously claimed against what was allowed by the Costs Officer in those different columns. Any cells edited by the Costs Officer are then highlighted in yellow, clearly showing where the Bill has been reduced or changed.

Once the Costs Officer has undertaken their assessment, this auto-populates a Bill breakdown in Tab 7 showing what was claimed and what was allowed as a whole. There is also space here for the Costs Officer to give any directions, which are easily missed in the current Bill of Costs as they are not always legible.

The E-Bill then goes on to provide various summaries, mainly to allow other ways of filtering depending on what the Costs Officer wants to review and/or what the firm wants to see has been allowed. It provides an activity summary (Tab 8), a communications summary which is similar to the traditional layout of the standard Bill of Costs broken down by parties (Tab 9), and a fee earner grade summary (Tab 10) which may assist some firms with Billing after assessment.

Tab 12 of the E-Bill is the traditional Bill summary required by the SCCO after assessment when requesting the Final Costs Certificate. Again, this is auto-populated with the costs allowed following assessment, avoiding the usual administrative work.

Tab 13 is the traditional Final Costs Certificate and again, this is auto-populated with the costs.

How will this impact COP practitioners?

The E-Bill will make life easier for the Deputy and their team. The assessment will be returned quicker, the comments will be legible and the assessment is automatically recalculated, dramatically reducing the administrative burden. It will take more time for the Draftsperson to prepare the Bill as a result of the activity breakdown required.

Deputies must be mindful of their OPG105 estimates (if a general management case) as the Costs Officer will have greater visibility of the costs incurred compared with what was predicted, which could potentially result in sizeable reductions to the Bill if the estimate was incorrect and not revised during the year.

Ultimately, the introduction of the COP E-Bill will be positive for professional Deputies and the change should be embraced by all. If you have any further questions regarding this article or the E-Bill, please contact Stephanie Kaye directly.

New update from SCCO on delays with COP assessments

Ella WilkinsonLeave a comment

This evening, the SCCO have circulated a further update notice on the current timescales for the assessment of COP bills.

In summary:

  • The Costs Officers are being assigned bills for assessment for cases where the supporting papers were received during or after the 2nd week of October
  • The Administrative Team are returning assessed bills received from the Costs Officers around the middle of March
  • New bill filings submitted in the 3rd week of February are being considered for acceptance or rejection
  • Filings requesting final costs certificates submitted in the 2nd week of April are currently being worked through

Please see below a full copy of the notice released for the full details.

Notice-to-COP-customers-19-April-2022-SCCO-1Download

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

Recent Developments from the Professional Deputies Forum

Stephanie KayeLeave a comment

Clarion are delighted to work alongside the Professional Deputies Forum (PDF) and we wanted to share the recent great efforts of the PDF working group, which our Stephanie Kaye is a part of.

Interim payments and fixed costs

Following on from the recent delays with the SCCO, at the recent Court of Protection Rules Committee, Martin Terrell (representing the PDF), proposed the idea of extending interim payments in matters other than the general management costs. An agreement was reached, whereby in matters where a final order has been made, solicitor-applicants are allowed to ask the Court for interim payment of up to 75%. This ensures that the solicitors will not have to wait until after assessment to receive their costs in matters such as Deputyship applications, statutory will applications or other ad-hoc applications. The Deputy would need to issue a credit note if the final costs allowed on assessment are less than the amount taken on account and these funds would then need to be returned to P. This development will need to be trialled, however, it will benefit many firms and ensure that they are able to remain financially viable. This is huge progress for those firms who carry significant WIP on application cases.

SCCO delays

The PDF has written to the Cost Judges to express their viewpoint on the delays and lack of engagement from the SCCO with the PDF. The PDF has advised that the only official route of complaint is via the HMCTS. Members of the PDF are encouraged to file complaints via this method if they have not already done so in the hope that the volume of complaints will have a greater impact and achieve the shared goal amongst Court of Protection practices. There is a direct link to the complaints procedure on the SCCO website. Any progress made with the SCCO will be shared on the PDF forum and also on the Clarion blog.

If you have any questions regarding the work of the PDF working group or any concerns to bring to the attention of the PDF, please contact Stephanie Kaye directly.

This blog was written by Casey McGregor. If you have any questions regarding COP costs, please contact Casey at Casey.Mcgregor@clarionsolicitors.com

When is a Deputy Entitled to Have a Bill of Costs Assessed by the Senior Courts Costs Office?

Laura SugarmanLeave a comment

Professional Deputies are entitled to take costs for the work that they have carried out throughout a management year. This must be completed in accordance with the rules set by the Court of Protection, Senior Courts Costs Office, and Office of the Public Guardian. The Deputy will most likely opt for their costs to be assessed by the SCCO, and otherwise they could take fixed costs.

When a Deputy is appointed, the Court of Protection make a Court Order outlining the authority of the Deputy. One such authority is the Deputy’s entitlement to be paid in respect of the work done on behalf of P. Under the ‘Costs and expenses’ section of the Court Order, the Costs Judge will outline how the Deputy should be remunerated for their costs, which is typically either fixed costs or detailed assessment by a Costs Officer.

If the Deputy would like to have their costs assessed, as the time they have spent outweighs the amount allowed by fixed costs, then they must have authority within the Order to do so.

Below is an example of a costs clause within an Order that grants authority for the Deputy to receive fixed costs only:

            ‘The Deputy is entitled to receive fixed costs in relation to this application, and to receive fixed costs for the general management of the Protected Party’s affairs.’

As a reminder, some of the key current fixed costs available are set out in Practice Direction 19B of the Court of Protection Rules (2017), and are as follows:

  • £950.00 + VAT for a Deputyship application
  • £1,670.00 + VAT for the first year of general management of P’s affairs
  • £1,320.00 + VAT for second and subsequent years of managing P’s affairs

You can find the full Practice Direction here, if you require further information: https://www.judiciary.uk/publications/fixed-costs-in-the-court-of-protection/

Below is an example of a costs clause within an Order which gives authority for the Deputy to have their costs assessed by the SCCO, or to take fixed costs if they prefer:

            ‘The Deputy is entitled to receive fixed costs in relation to this application, and to receive fixed costs for the general management of the Protected Party’s affairs. If the Deputy would prefer the costs to be assessed, this order is to be treated as authority to the Senior Courts Costs Office to carry out a detailed assessment on the standard basis.’

Where a Court Order provides for detailed assessment of the Deputy’s costs, Deputies may decide to take fixed costs in lieu of detailed assessment, but this is not mandatory. If you have authority for the assessment of costs in your Order and you will exceed the fixed costs amount, we recommend that you opt for assessment instead, as it is very likely that you will recover more than the fixed costs amount.

If a Deputy has incurred more time than allowed under the fixed costs amount when administering P’s affairs, but only has authority to take fixed costs, then they may choose to apply to the Court of Protection for an amended Court Order granting authority to have their costs assessed.

If a Court order does not grant authority for costs at all, then the Deputy can apply to the Court of Protection to amend the Court Order to include a clause for costs. Otherwise, the Deputy would have no authority to charge for the work that they have completed.

For further information, please contact Lewis.Grant@ClarionSolicitors.com

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

New update from SCCO on COP assessment delays

Ella WilkinsonLeave a comment

This evening, the SCCO have released a further notice in relation to the ongoing delays with COP assessments.

In summary, turnaround is as follows at present:

  • Bills received at the beginning of September 2021 are currently being assessed
  • The Admin Team are processing the return of assessed bills received back from the Costs Officers in the third week of January
  • New filings for assessment received around the middle of January are being considered for acceptance/rejection
  • Certificate request filings received in the last week of February are currently being reviewed and actioned

Please see the link below for the full notice released:

Notice-to-COP-customers-07-March-2022-SCCODownload

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

Further update from SCCO on COP assessment delays

Ella WilkinsonLeave a comment

Please see below an update notice released by the SCCO this afternoon, providing a further update on the current turnaround times for COP assessments.

In summary, the Costs Officers are currently assessing bills received around mid August 2021, and the Admin Team are working on returning bills that have been assessed, and are currently up to those assessed just before Christmas.

With regards to e-filing, new filings submitted towards the start of January are currently being dealt with, and final costs certificate requests received towards the end of January are being processed at present.

Update-Notice-to-COP-customers-21.02.22Download

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

Can a non-solicitor Deputy charge solicitor fees?

Ella WilkinsonLeave a comment

In the recent case of Riddle v Public Guardian [2021] EWCOP 38, an application was made for Permission to Appeal from two judgments of HHJ Hilder, dated 11 August 2020 and 4 September 2020, which are reported as The Public Guardian v Andrew Riddle (No1 and No2) [2020] EWCOP 41.

By way of background, Mr Riddle is Managing Director of Professional Deputies, offering services in acting as appointee, Deputy, or Attorney, and assisting applicants in making applications to the Court. However, he is not a qualified solicitor. The prior hearings concerned, amongst other factors, whether the professional Deputy should be authorised to charge fees at a solicitors’ rate, or whether their charges could fall somewhere in between the public authority and solicitor rates. In addition, whether a professional Deputy could be remunerated at a higher rate than public authority Deputies was also considered, and the conclusion of the Court was that they could not.

The application for permission to appeal was originally rejected on the papers, however a renewed oral application was allowed. There were three grounds of appeal (with Ground 1 being split into two parts):

  • That the Judge erred in her general conclusions that Mr Riddle should not be afforded a specific rate
  • That the estates of Protected Parties would commonly be dealt with by Solicitors, and that inadequate weight was placed on the benefit to P of having a professional Deputy
  • That the Judge erred in her refusal to grant Mr Riddle’s application for relief from liability for past charging
  • That the Judge erred in refusing the application made for the Public Guardian to pay Mr Riddle’s costs associated with responding to the revocation application (save for the costs associated with Mr Riddle paying his legal fees from the estates of Protected Parties and restoring the estates in this regard)

On consideration of the grounds and the submissions made by both parties, it was decided that the arguments presented had no reasonable prospect of success and were bound to fail. As a result of the above, permission to appeal on the presented grounds was refused, affirmed as per an Order dated 19 March 2021.

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

New guidance from the SCCO on electronic supporting files in COP cases

Ella WilkinsonLeave a comment

We have received updated guidance from the SCCO on the process for uploading electronic supporting documents for Court of Protection assessments via the DUC [Document Upload Centre]. Please note that the use of this is not compulsory, and that hard copy files can still be submitted as usual.

Is CE-File still relevant?

As per the current procedure, the Bill of Costs, N258B and Court Order providing authority for the assessment will still need to be e-filed via the CE-File system in place, however the electronic supporting papers cannot be uploaded via this system, and will not be accepted by the SCCO.

Can you use the DUC system for only select cases, or do you need to use it for all matters?

The DUC system needs to be used to submit any electronic supporting papers following receipt of the e-filing acceptance notification (as currently, you have 28 days following receipt of this to provide your papers, whether electronically or in hard copy). This can be used for all of your bills to be assessed, or can also be used on a selective basis, where you wish to provide electronic files in some cases, but hard copy papers in others.  

If you intend to use the DUC system for all of your matters, then you will need to email Costs Officer Leggett at Christine.leggett@justice.gov.uk, providing details of the email address to be linked as a user to the DUC, with a request to be added as a permanent DUC user. Once confirmation of this status has been received, you will not need to inform the SCCO every time you wish to submit electronic supporting papers via the DUC.

If you are not registered as a permanent DUC user, then the presumption of the SCCO is that they will receive physical files in the post/DX from you. If you do decide to make use of the DUC on a bill, then a comment should be left in the filing comments section when submitting the bill via CE-File, clearly stating your intention to submit the supporting papers electronically via the DUC. Not doing so could cause delays in your assessment, if the clerk reviewing the e-filing request is not aware that the files are to be submitted electronically.

How should electronic supporting papers be formatted?

Guidance was also provided as to how electronic supporting papers should be presented, summarised in the below points:

  • Files should run in chronological, from oldest to newest
  • Copies of the OPG102, OPG105, client care information and any disbursement invoices or Counsels’ fee notes should be included at the start of the files
  • The file should be named as the SCCO case reference, the Protected Party’s surname, and the dates of the general management period if relevant
  • It is preferable that there is an index, including hyperlinks
  • If more than one file of papers is uploaded, each should be clearly labelled with the SCCO reference number, the number of the file (e.g file 2), and the period of work which the file covers

Can you use the DUC for a matter you have already e-filed?

If a case has already been e-filed via CE-File and the acceptance notification received however you decide that you would like to submit your papers electronically, you will need to contact scco@justice.gov.uk, informing the SCCO that you wish to now provide electronic files, and providing the 18 digit submission number from your e-filing acceptance notification.

How do you register to use the DUC?

In order to register, you can contact Christine.leggett@justice.gov.uk, confirming the email address to be registered on the system. A response will then be provided outlining the next steps to progress the sign up.

You can find the full guidance issued by the SCCO on the below PDF document:

Senior-Courts-Costs-office-guidance-for-Court-of-Protection-Bills-and-the-Document-Upload-Centre-2Download

Ella Wilkinson is a Legal Apprentice in the Costs & Litigation Funding Team at Clarion. You can contact her on 0113 288 5693, or by email to ella.wilkinson@clarionsolicitors.com

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

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).

Can the Court decide if P should have the COVID-19 vaccine?

Ella WilkinsonLeave a comment

In the recent case of E (Vaccine) [2021] EWCOP 7, the issue at hand was whether P should receive a vaccination for COVID-19.

By way of background, P is 80 years old, has been diagnosed with dementia and schizophrenia, and is a care home resident.

On 8 January 2021, P’s accredited legal representative was informed by the London Borough of Hammersmith and Fulham that she was to be offered a vaccination against COVID-19 on 11 January 2021. P’s son raised objections to this via email, and therefore the vaccination on 11 January did not go ahead.

As such, an application was made by P’s legal representative, pursuant to S15 Mental Capacity Act (2005), to obtain a declaration stating that it would be lawful and in P’s best interests for her to receive the vaccine at the next available date.

In a video call with P’s GP on 19 January 2021, P was asked whether she remembered being informed of Coronavirus and the dangers of it, to which P responded she did not. When asked if she wanted to receive the vaccination, P stated that she wanted ‘whatever was best for me’.

P’s son, as per his objections raised when P was initially offered the vaccine, did not share this viewpoint, and raised concerns as to the efficacy of the vaccine, and whether sufficient testing had been carried out.

It was concluded that P did not have the capacity to understand the nature or transmission of Coronavirus, or to determine whether she should receive the vaccine. Furthermore, it was decided that given the fact that the care home she resided in had several recent positive cases of Coronavirus, taking into account P’s age, medical conditions and her statement on the video call with the GP, that it was in her best interests for her to be vaccinated, and for her to receive the vaccine as soon as practicable.

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