Tag: #costs

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

Leah MorrisLeave a comment

Navigating the complexities of Court of Protection requires a clear understanding of the roles and responsibilities of the various fee earners involved in the process. From apprentices and paralegals through to senior partners, each grade of fee earner plays a vital part in managing and overseeing costs, ensuring that both legal obligations and client needs are met efficiently. In this blog, we will explore the specific tasks and duties that correspond to each grade of fee earner, offering insight into how their work contributes to the overall success of Court of Protection cases and the accurate management of associated costs.

Grade D

Grade D fee earners refer to trainee solicitors, paralegals, and other fee earners, such as administrative assistants. These fee earners are not qualified lawyers.

Tasks commonly undertaken by Grade D fee earners include the following:

  • Arranging payments
  • Reviewing invoices
  • Considering incoming correspondence
  • Liaising with the DWP in relation to benefits
  • Preparing standard forms, such as banking forms
  • Amending standing orders
  • Considering bank statements
  • Attending the property for insurance visits.

These tasks are undertaken by Grade D fee earners to assist with the Protected Party’s daily life. Grade D fee earners will often be delegated tasks by more senior fee earners or seek instructions to reduce the costs incurred to the Protected Party. The tasks carried out usually require minimal specialist knowledge and consist of simpler duties to enable the day-to-day management of the case.

Grade C

Grade C fee earners consist of solicitors or legal executives and fee earners of equivalent experience. These fee earners are usually qualified, however, senior paralegals can also be categorised as Grade C based on extensive Court of Protection experience.

Tasks commonly undertaken by Grade C fee earners include the following:

  • Preparing the annual Deputyship report
  • Preparing benefits forms
  • Considering the insurance position
  • Reviewing care plans
  • Drafting COP forms

Grade C fee earners usually have regular day-to-day conduct of the file and will complete tasks to reduce the costs incurred to the Protected Party. However, these tasks may be slightly more complex and require further specialist knowledge than unqualified persons (Grade D) to enable completion. In practice, Grade C fee earners are often the backbone of the day-to-day management of the case. They ensure that routine matters such as reporting, correspondence, and documentation are handled effectively while providing intermediate-level legal support. Their ability to balance both practical and legal considerations helps keep costs manageable while still meeting legal standards.

Grade B

Grade B fee earners include solicitors and legal executives who have been qualified for a minimum of four years.

Tasks commonly undertaken by Grade B fee earners include the following:

  • Liaising with P and their family as the main point of contact
  • Preparing budgets
  • Preparing Witness Statements
  • Liaising with the care home regarding P
  • Making simpler best interests decisions

Claiming Grade B in cases is challenging due to the complexity of tasks to be undertaken, requiring extensive legal knowledge that would necessitate a more senior fee earner than Grade D or C. However, the tasks are not quite complex enough to warrant the expertise of a Grade A fee earner, such as the Deputy. As there is no exhaustive list of specific tasks, it can be difficult to justify why a Grade B fee earner was required to conduct the work in the place of a lower grade fee earner. Grade B fee earners take on a supervisory role in cases, often overseeing the more detailed aspects of the case while ensuring compliance with Court of Protection requirements. Their work bridges the gap between the more routine tasks carried out by Grade C or D fee earners and the high-level strategic oversight of a Grade A fee earner.

Grade A

Grade A fee earners consist of solicitors and legal executives who have been qualified for over 8 years.

Tasks commonly undertaken by Grade A fee earners include the following:

  • Certifying and signing documents
  • Approving payments
  • Making complex and costly best interests decisions
  • Delegating tasks
  • Attending on P for the annual Deputy visit
  • Attending on the IFA
  • Reviewing investment and portfolio reports

Grade A fee earners have minimal overall day-to-day navigation of the matter due to the higher hourly rate charged and therefore the additional costs that would be incurred to the Protected Party. This is because they are focused on providing specialised expertise or high-level legal advice rather than managing the day-to-day administrative tasks and procedural aspects of a case. Their role is usually more strategic, handling complex legal issues and ensuring that the case aligns with broader legal principles. In practice, Grade A fee earners are responsible for making decisions with long-term implications, including the management of assets, complex best interests decisions, and compliance with legal requirements. As a result, the administrative tasks, client communication and file management responsibilities often fall to more junior staff, such as Grade C fee earners or paralegals, who are responsible for maintaining the case on a practical level. This division allows Grade A fee earners to focus on their area of expertise while delegating routine tasks to those with less specialised experience.

In conclusion, understanding the specific responsibilities of each grade fee earner in Court of Protection cases is essential for both managing costs effectively and ensuring the protection and care of vulnerable individuals. From the foundational tasks handled by junior fee earners to the more complex responsibilities undertaken by senior professionals, each role plays a vital part in maintaining the smooth operation of the case. By clearly outlining the tasks and responsibilities across different grades, legal teams can work more efficiently, ensuring that every aspect of the case is addressed with the appropriate level of expertise. This collaborative approach helps to balance both legal and financial obligations, ultimately benefiting the clients who rely on the Court of Protection system for support and guidance.

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

Costs in Trust Disputes: Key Insights from Seymour v Ragley Trust

Daniel MurrayLeave a comment

The High Court’s decision in William Francis Seymour v Ragley Trust Company Ltd & Ors [2025] EWHC 3400 (Ch) serves as a vital reminder of the difficulties faced by unsuccessful parties in displacing the general rule that the losing party pays the costs of the successful party. This case not only carries significant implications for family-estate and trust law but also reinforces the stringent requirements for overturning the usual costs order, i.e. the unsuccessful party pay the costs of the successful party,  particularly in the context of beneficiary disputes.

Background

In this case, the Claimant, who is the Earl of Yarmouth,  sought the removal of the existing trustees of the Ragley family trusts, aiming to replace them with independent professional trustees. After his claim was dismissed, the Claimant sought to displace the standard costs rule, arguing that he had experienced partial success and that the conduct of the Defendants warranted a different outcome under CPR 44.2(2)(a).

The Claimant contended that the costs of all of the parties should be paid out of the trust assets, alternatively that an order should be made for a payment of only a proportion of the Defendants’ costs, of no more than 50%.

The Categorisation of Trust Litigation and Costs

At the outset of his judgment, Master Brightwell provided a useful summary of the key principles governing costs in trust disputes, drawing on the Court of Appeal’s decision in Price v Saundry [2019] EWCA Civ 2261 and the longstanding authority of Re Buckton [1907] 2 Ch 406. These principles divide trust litigation into three main categories:

  1. Trustee Applications for Court Guidance
    • Trustees seek judicial assistance on matters such as trust interpretation or administration.
    • The costs of all parties are typically paid from the trust fund, as the estate is the primary beneficiary.
  2. Non-Trustee Applications
    • An outsider (e.g. a beneficiary or other interested party) seeks guidance that could have been requested by the trustees.
    • Costs are treated in the same way as trustee applications, with payments typically made from the trust fund.
  3. Beneficiary Disputes
    • A beneficiary makes a hostile claim against trustees or other beneficiaries.
    • This is treated like common law litigation, with costs generally following the event.

It was not seriously disputed that this case fell into the third category: a beneficiary dispute. The Claimant had brought a “root and branch” attack on the trustees’ conduct, which was clearly hostile in nature.

The Claimant’s Attempts to Displace the usual Costs Rule

Partial Success

The Claimant’s argument regarding partial success was based on the fact that he had succeeded in achieving a change in the composition of the directors of the trust companies. However, this argument was swiftly dismissed by the Court. Master Brightwell referenced earlier correspondence from the Claimant’s solicitors, which indicated that the appointment of a fourth director did not have any significant value or impact on the administration of the trust. As such, the partial success argument did not carry any weight. The application of an issue based order was dismissed, on the grounds that the Court must also be able to identify, at least in broad brush or in general terms, a part or proportion of the costs of the unsuccessful party which were incurred because of the unreasonable conduct which is complained about.

Conduct of the Parties

The Claimant also sought to challenge the Defendants’ conduct during the litigation. Specifically, he argued that the trustees had acted unreasonably by vigorously defending the allegations made against them, despite suggestions that they were open to stepping down or being removed from their positions. He also pointed to the fact that the trustees did not personally attend a settlement meeting, implying a lack of engagement.

However, the Court rejected these submissions. Master Brightwell noted that in beneficiary disputes, where allegations of misconduct are dismissed, the general costs rule is the starting point. Had the allegations been substantiated, the situation would have been different. There would have been strong arguments in favour of the trustees losing their indemnity from the trust assets and possibly being required to pay the Claimant’s costs. However, as the allegations were not proven, the trustees were entitled to defend themselves fully, and no misconduct was found.

Quantum and the Claimant’s Procedural Challenges

In addition to the issues of partial success and conduct, the Claimant raised concerns about the quantum of costs. Specifically, he questioned the fairness of the costs given that the claim had been brought under the Part 8 procedure, which did not involve the cross-examination of witnesses. The Judge noted that these concerns were a matter for detailed assessment rather than something that should automatically reduce the costs. Consequently, the Claimant was ordered to pay the Defendants’ costs on the standard basis, to be assessed if not agreed.

Indemnity from Trust Assets

The judgment also addressed the issue of indemnity for the trustees. Master Brightwell confirmed that, to the extent the costs were not recovered from the Claimant (whether due to an assessment down or non-recovery), the trustees were entitled to an indemnity from the trust assets. This was to be given effect by the trustees having their costs assessed on the indemnity basis, ensuring that they could recover their legal fees from the trust fund.

Key Takeaways for Trust Litigation and Costs

  1. Costs in Beneficiary Disputes: In beneficiary disputes, the general rule is that costs will follow the event. Even if a Claimant achieves some minor or peripheral benefit from the litigation, unless that translates into substantive relief, they are likely to bear the costs of the successful parties.
  2. No Leniency for Conduct: A party’s conduct during proceedings will rarely alter the costs order unless there is clear misconduct. Trustees defending claims against them are entitled to act robustly without the risk of bearing the costs, provided their actions are not unreasonable.
  3. Indemnity for Trustees: Trustees who successfully defend claims will usually be indemnified from the trust fund for their costs, provided they act in good faith. This indemnity ensures that trustees are not financially burdened by their legal fees when defending their position in the trust.
  4. Cost Assessments: Even if a Claimant challenges the quantum of costs, this will be dealt with at the assessment stage, not as a reduction in costs as a matter of principle.
  5. Issue Based Costs Orders: Parties seeking issue based costs orders, must be prepared to substantiate their arguments, so the Court can make an informed decision.

The case highlights the importance of understanding the nuanced rules surrounding costs in trust litigation, especially for beneficiaries considering challenging trustees. The default position remains clear: losing a claim means paying the costs, and partial success or the conduct of the parties is unlikely to alter that outcome unless specific conditions are met.

Daniel Murray is a Senior Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Since costs were to be assessed on the indemnity basis, the Court declined to determine an application to vary the Claimant’s approved costs budget

Katie SpencerLeave a comment

In the case of Xtellus Capital Partners Inc v Dl Invest Group Pm S.A. [2025] EWHC 2168 , Judge Bird found that the Defendant’s unreasonable conduct during the proceedings justified ordering that the Claimant’s costs be assessed on the indemnity basis for all phases of the case.

The Claimant had applied to vary its approved budget because its actual costs exceeded the approved amounts, but the Judge considered whether it was necessary to decide that application since the assessment would be on the indemnity basis.

CPR 3.18 governs departures from approved budgets when costs are assessed on the standard basis; it does not apply where the assessment is on the indemnity basis.

CPR 44.4(3)(h) requires the court, on detailed assessment, to have regard to the receiving party’s last approved or agreed budget. Budgets therefore remain potentially relevant even on an indemnity basis assessment, and the Court may depart from them without requiring a “good reason’.

However, the Judge decided that it was best not to deal with the budget variation application at this stage. He gave two reasons:

  1. On an indemnity assessment the Court can depart from approved budgets, so leaving the matter to a detailed assessment would not prejudice the Claimant; and
  2. Deciding the variation now would involve applying the “reasonable and proportionate costs” test, which is appropriate for the standard basis, not for the indemnity basis.

In conclusion, an application to vary an approved budget is not automatically necessary where costs are to be assessed on the indemnity basis. The Court may instead leave the issue to be resolved at the detailed assessment stage.

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

Refusal to strike out non-compliant point of dispute overturned on appeal

Robert PattersonLeave a comment

Where points of dispute are served in detailed assessment proceedings, they must comply with the requirements of Practice Direction 47, section 8.2. If it is found that points of dispute do not comply with the requirements  of the Practice Direction, then a paying party runs the risk of the points of dispute being struck out as per Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178 (19 February 2020).

Non-compliant points of dispute can of course be remedied. Documents served in detailed assessment proceedings can be varied in accordance with section 13.10 of the Practice Direction. Permission is not required to vary a document, but the Court may permit it on conditions or disallow it. The Court should only exercise this power in accordance with the overriding objective and if an amended or varied document is not served and filed in good time before a detailed assessment hearing, then it may be disallowed.

The recent case of Ward v Rai (Rev1) [2025] EWHC 1681 (KB) (03 July 2025) underlines the importance of compliance with the mandatory provisions of section 8.2 and also demonstrates the consequences of submitting an variation, very late in the proceedings. It is also a rare example of an appellate Court using its limited powers to overturn a discretionary case management decision.

The decision at first instance

The appeal centred around the document item in the receiving party’s bill of costs, which claimed 134.1 hours for work done on documents. The paying party’s point of dispute raised only general objections and indicated that the paying party would rely on an “annotated documents schedule of objections” (which was not served with the points of dispute). The point of dispute concluded with an offer of 68.3 hours in respect of the time claimed.

In his replies to points of dispute, the receiving party submitted that the point of dispute should be struck out because it did not comply with the mandatory provisions of section 8.2 and relied on the decision in Ainsworth.

The paying party’s “annotated documents schedule of objections” was not served until 2 working days before the commencement of the detailed assessment hearing, which had been listed for 2 days. This schedule was the first and only attempt by the paying party to identify which items in the document schedule were in dispute. Furthermore, the schedule offered a primary case of 58.5 hours and an alternative case of 58.8 hours; circa 10 fewer hours than the original point of dispute.

Unsurprisingly, the Judge at first instance was asked to disallow the point of dispute in respect of the document item, which he refused to do on grounds that the original point of dispute would have enabled a broad-brush assessment to take place. In addition, and whilst being critical of the paying party for serving the schedule late, the Judge was equally critical of the receiving party for failing to chase the paying party’s schedule. Ultimately the Judge permitted the paying party to rely on the schedule and adjourned the hearing into a third day.

At the conclusion of the third day, the receiving party’s bill was assessed in sum of £89,032.62 with £8,234.91 in interest, which was lower than the paying party’s Part 36 Offer. Consequently, the receiving party was ordered to pay the costs of the detailed assessment.

The appeal

The receiving party appealed the Judge’s decision not to strike out the point of dispute in respect of the document item and the Judge’s decision to permit the paying party to rely on its schedule. There were 5 grounds of appeal:

  1. The Judge failed to give proper effect to the correct interpretation of PD 47, paragraph 8.2(b) and in doing so, wrongly applied Ainsworth;
  2. That the Judge had misdirected himself in finding that the original Points of Dispute would have allowed there to have been a “fairly broad-brush assessment in any event”;
  3. The finding that the receiving party should have chased the paying party for the schedule and that both parties were at fault, was wrong;
  4. A finding that a Costs Judge had “very wide powers” to permit a variation; and
  5. That the Judge was wrong to permit the paying party to rely on the schedule as there had been no ambush.

The appeal court dismissed all 5 grounds. Ground 1 was dismissed because the Judge did not find that the original point of dispute was compliant and could not be said to have wrongly applied the law. Ground 2 failed because the Judge did not misdirect himself, while grounds 3 and 4 were dismissed because the Judge was entitled to find that the receiving party had a duty to chase the paying party and it was open to him to find that there was no ambush. Ground 5 failed because, the Judge had correctly identified that his powers under section 13.10 were wide.

However, the receiving party made an overarching point that the Judge’s approach was wrong because the Judge had failed to give sufficient weight to the mandatory aspects of paragraph 8.2(b) and had failed to ensure that the powers in 13.10(2) were exercised in accordance with the overriding objective.

In allowing the appeal, the Court found that had the Judge disallowed the original point of dispute, the detailed assessment would have concluded on the second day and there would not have been a third day. The Court also found that the paying party had been on notice of the receiving party’s intentions to have the original point of dispute struck out for 7 months and took no steps to serve the schedule until two working days before the hearing, which the Court found was an even more egregious an issue than in Ainsworth where there was 5 months’ notice of the issue without remedy.

The Court also rejected the paying party’s reason for the delay, that he hoped the matter would settle, as being circular: settlement would have been more likely if the schedule had been served sooner. The appeal court therefore held that the Judge’s refusal to strike out the original point of dispute and the decision to permit the paying party to rely on the schedule was wrong.

Conclusion

Although the judgment does not say as much, a decision to strike out the non-compliant point of dispute would have brought to an end the paying party’s entitlement to dispute a significant element of the bill (134.1 hours of document time) with the result that this may have been allowed in full.

Whilst those consequences may appear to be severe, they could easily have been avoided by serving compliant points of dispute in the first instance or by acting promptly in submitting a variation when the issues were first raised in the replies to points of dispute.

Robert Patterson is a Senior Associate in the Costs and Litigation Funding Department at Clarion Solicitors and can be contacted on 07810 750 360 or at robert.patterson@clarionsolicitors.com

Defendant Barred from Arguing Costs – Except Wasted Costs

Katie SpencerLeave a comment

In the recent judicial review case of Ayinde, R (On the Application of) v The London Borough of Haringey, the Defendant was barred from making submissions on general costs after failing to comply with key procedural requirements.

Background

Following the Claimant’s issuance of judicial review proceedings, the Defendant failed to acknowledge service and did not file a statement of facts and grounds of defence. As a result, the Defendant applied for relief from sanctions in an attempt to participate in arguments on costs.

Costs consequences for the Defendant

The Court refused the application, underlining the importance of strict compliance with procedural rules. Consequently, the Defendant was barred from making submissions on general costs.

Wasted Costs

However, the Court did allow the Defendant to make submissions on wasted costs. This exception arose due to the Claimant’s legal representatives citing five fictional legal authorities in their application. In response, the Court issued a wasted costs order, describing the actions as professional misconduct.

Despite being restricted from general cost arguments, the Defendant was still permitted to address the issue of wasted costs—a distinct category aimed at compensating parties for costs incurred due to improper or negligent conduct by legal professionals.

Summary

This ruling serves as a strong reminder that non-compliance with court orders or procedures can lead to severe consequences, including the loss of the right to contest key aspects of a case, particularly on costs.

Practitioners must act promptly and diligently in complying with court directions. Failure to do so risks being excluded from critical elements of litigation, especially those with significant financial impact.

Katie Spencer is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors and can be contacted on 07741 988925 or at katie.spencer@clarionsolicitors.com.

An Insight into the General Principles and Rationale of the Costs Budgeting Process

angelanakoLeave a comment

Introduction

The judgement of Master Brightwell in Atlantic Ways Holding SA v Freetown Terminal Holding Ltd [2025] EWHC 674 (Ch), provides an insight into the costs budgeting process and emphasises the importance of proportionality in the costs management process, regardless of whether costs in the first instance were reasonable in nature.

Background of the case

A cost management hearing took place on 25 February 2025, where there was a disparity between the budgets of the Claimant and the Defendant. The Claimant’s budget had been agreed at £449,000 and the Defendant’s budget was drawn at £808,000 and was disputed. Due to this disparity, Master Brightwell set out the general principles of each parties’ proposals, in comparison to the principles of costs management.

The Judgement

Master Brightwell made clear that a budget is set by the Court without undertaking a detailed assessment in advance. However once set, the Court would not depart from this without adequate reason, and it is the role of the Court to set the budget “with an eye to what would be permitted on a detailed assessment on the standard basis” meaning any doubt will be resolved in favour of the paying party. It was also highlighted that the Court is to avoid comparing parties’ budgets, whilst acknowledging that it remains impossible to fix one budget and ignore the other. The Master went on to confirm that the budgeted costs are still considered reasonable and proportionate if they fall at the outer end of the range.

In respect of hourly rates, Master Brightwell emphasised that it is not for the Court to set or approve the charging rates or the time spent by each level of fee-earner and Counsel. However, if the charging rates are not within a reasonable range, then this would affect the reasonableness and proportionality of the budget. The rates used in the Defendant’s costs budget significantly exceeded even the London 1 rates which are for “the heaviest corporate and commercial work,” and whilst the claim was not insignificant, it still was not the most substantial case type dealt with by the Court. Therefore, the London 1 guideline rates would be the maximum permitted.

Master Brightwell then explained his rationale for the budget set for the Defendant by applying the principles of reasonableness and proportionality to each phase.

Each phase of the budget was reduced. However, whilst the amount sought by the Defendant for the expert reports is unclear, the Master granted the Defendant’s budget for this phase at £55,000 in comparison to the Claimant’s budget at £40,000 to allow margin for error. This itself is another useful insight into the budgeting process and acknowledges that the Courts are willing on occasion, to allow variations during a hearing where developments justify it.

Duplication and involvement of multiple fee-earners was addressed by the Court, with reductions made due to fears regarding duplication. The Master noted Practice Direction 57AC, highlighting that witness detailed investigations of documents were not to be conducted and what was said in documents was not to be recited, rather the idea of the witness statement phase is to take the witness’ own evidence. Attendance at trial by multiple fee earners was also reduced by the Court, with attendance by two fee-earners and another present for assistance being provisioned, as opposed to four fee earners that were sought.

Despite DKH Retail Ltd and others v City Football Group Ltd [2024] EWHC 3231 (Ch) where the court ordered for mediation to occur before trial, Master Brightwell in this case reduced the budget for ADR to exclude the assumption of mediation. Master Brightwell explained that if mediation was to occur, then the budget could be revised on the basis of a substantial development.

Conclusion

Overall, the case provides a useful step by step approach to each phase of a costs budget during the cost management process and emphasises the application of the principle that proportionality trumps reasonableness, even at the cost budgeting stage.

 

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

The importance of fulfilling duties as Deputy – the recent case of AECO, Re [2025] EWCOP 5 (T2)

Leah MorrisLeave a comment

In the recent case of AECO, Re [2025] EWCOP 5 (T2), HHJ Cronin addressed the Public Guardian’s application to remove JO as the Deputy for AECO, a woman with Retts Syndrome and several mental and physical disabilities. The case centred on concerns regarding JO’s ability to properly manage AECO’s finances and property. AECO, who has always required significant care, was represented by her mother, JO, and her brother, but JO was not represented legally during the hearing.

JO had served as AECO’s Deputy since 2014, but the Public Guardian raised multiple issues concerning her management of the Deputyship. These included a failure to submit timely annual reports, late payment of supervision fees, mixing AECO’s funds with her own, the improper occupation of AECO’s property, and questionable financial transactions involving large sums directed towards JO and her son. Additionally, JO was accused of not cooperating with the Public Guardian and the interim Deputy.

Key Issues with JO’s Conduct

1. Failure to Report and Pay Fees: JO had failed to submit annual supervision reports on time for several years and was behind on her payments for supervision fees, despite reminders.

2. Mixing of Funds: JO did not open a designated Deputyship bank account for AECO, mixing AECO’s money with her own. This made it impossible to distinguish between their finances.

3. Property Occupation: JO and her son had stayed in AECO’s property for extended periods without contributing to the additional costs, which was a breach of proper financial stewardship.

4. Questionable Financial Transactions: There were concerns about large sums of money being transferred to JO and her son, which required further investigation.

5. Lack of Cooperation: JO had failed to provide necessary documents and cooperate with professionals, despite clear instructions.

These failures had resulted in financial mismanagement, potentially harming AECO’s entitlement to housing benefits and violating her tenancy agreement. The judge emphasized that AECO’s money had been mismanaged, and the situation had become untenable for her continued well-being.

The Court’s Decision

The Court concluded that JO was no longer fit to serve as AECO’s Deputy. Her repeated failures in managing AECO’s affairs and her lack of cooperation with the necessary authorities left AECO’s financial situation precarious, as her money had been lost. In light of these issues, it was determined that removing JO as the Deputy was in AECO’s best interests.

Despite the Court’s desire for a family member to manage AECO’s affairs, they found that no suitable family member was available to take on this responsibility. As a result, the Court confirmed the appointment of Jenny Pierce, an experienced Court of Protection Deputy, to manage AECO’s property and affairs moving forward.

Conclusion

This case highlights the importance of transparency, responsibility, and cooperation in managing the affairs of vulnerable individuals. When a Deputy fails in their duties, it can have serious consequences for the individual they are meant to protect. In this case, the Court’s decision to remove JO and appoint a professional Deputy underscores the need for proper oversight in managing the property and finances of those who cannot do so themselves.

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

Rahman v Hassan & Ors: guidance from the High Court on the effects of Part 36 offer in non-monetary claims and applications to vary costs budgets after Trial

Katie SpencerLeave a comment

The recent case of Rahman v Hassan & Ors (Re Consequential Matters) [2024] EWHC 2038 provides a useful insight into what constitutes a ‘significant development’ for the purposes of cost budget variation and the application of Part 36 offers in non-monetary matters

The case concerned the beneficial ownership of significant assets of a deceased relating to transactions alleged to have taken place between the Claimant and the late Mr Al-Hasib Mian Muhammad Abdullah Al Mahmood. It was held that these transactions amounted to donationes mortis causa, or “gifts in contemplation of death”.

Application to vary Costs Budget after Trial dismissed

The Claimant sought to vary his costs budget, which had previously been approved in the sum of £320,648.50 in accordance with the procedure under CPR 3.15A, after the trial had concluded and judgment had been handed down.

The matter was proceeding to a consequential hearing following written submissions which were ordered following the final hearing, when an increase of £134,931.55 was sought by the Claimant.

Five significant developments in the litigation were advanced by the Claimant in support of his request.

CPR Rule 3.15A Explained

Under CPR rule 3.15A, “a party must revise its budgeted costs upwards or downwards if significant developments in the litigation warrant such revisions.”

If revisions cannot be agreed between the parties, “the revising party must submit the particulars of variation promptly to the court, together with the last approved or agreed budget, and with an explanation of the points of difference if they have not been agreed.” The effects of failing to submit variations promptly were considered at length in the decision in Persimmon Homes Ltd and Anor v Osborne Clarke LLP and Anor [2021] EWHC 831 (Ch) and are discussed here.

Claimant’s application

The Claimant contended that there were five significant developments which warranted the costs budget to be changed. These are summarised as:

(1) Involvement in a road accident after the close of evidence and before closing submissions in the trial. The latter were postponed by just under a week.

(2) The fact that the Claimant’s Particulars of Claim were amended during the trial and additional costs were incurred.

(3) Additional costs were incurred as a result of the order made for written submissions at the conclusion of the trial

(4) There was an interval of some 5 1/2 months between the end of the closing submissions of the circulation of the draft judgment, and additional costs were incurred by the Claimant once that draft judgment was circulated.

(5) Work on the judgment in the period 29 May 2024 to 14 June 2024 resulted in additional costs being incurred by the Claimant.

The Court’s decision

The Court refused the Claimant’s request to vary. It was acknowledged that each of the five grounds referenced by the Claimant could be considered a development, they were not significant.

HHJ Paul Matthews (sitting as a Judge of the High Court), confirmed, “I do not regard any of these five matters any of these five matters as a “significant” development in the litigation which should justify a variation of the budget. The use of the word “significant” in the rule is deliberate. It is not every development that requires variation in the budget. Otherwise large amounts of pre-trial preparation time would be taken up with making applications for budget variations.”

The application of CPR Part 36 in non-monetary claims

HHJ Matthews also considered the application of CPR 36.17 to non-monetary claims. Initially the Court had determined that the Claimant had been the successful party in view of him taking beneficial ownership of significant assets of a deceased.

The claimant had made a Part 36 offer in January 2023 Part 36, in respect of the whole claim and counterclaim. The offer was that the Claimant would receive furniture and personal chattels of a property, as well as some bank accounts. At trial, the Claimant was awarded two properties, which were deemed to be significantly more valuable than the contents of the offer. The 21-day period applicable to the offer expired on 13 February 2023. The offer was not accepted, but the defendants agreed that this offer was a claimant’s Part 36 offer within CPR rule 36.17.

CPR 36.17 explained

The rule provides that where a Claimant obtains judgment against the Defendant is at least as advantageous to the Claimant as the proposals contained in a Claimant’s Part 36 offer, then the Court must, unless it considers it unjust to do so, order that the claimant is entitled to:

(a) interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;

(b) costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired;

(c) interest on those costs at a rate not exceeding 10% above base rate; and

(d) provided that the case has been decided and there has not been a previous order under this sub-paragraph, an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below to an amount which is—

(i) the sum awarded to the claimant by the court; or

(ii) where there is no monetary award, the sum awarded to the claimant by the court in respect of costs—

Amount awarded by the court Prescribed percentage
Up to £500,000 10% of the amount awarded
Above £500,000 10% of the first £500,000 and (subject to the limit of £75,000) 5% of any amount above that figure.

 

CPR 36.17(2) states that, “in relation to any money claim or money element of a claim, “more advantageous” means better in money terms by any amount, however small, and “at least as advantageous” shall be construed accordingly.”

The decision

The Defendant had disputed the application of CPR 36.17(4)(a), on the basis that no monetary award had been made and the provisions of (2) restricted the application of the rule to money claims only.

The Court disagreed with this approach, and that they did not “read rule 36.17(2) as so restricting the scope of rule 36.17. I read that rule saying that, in the application of this rule to money claims, ‘more advantageous’ and ‘at least as advantageous’ have a money-based meaning, and no other. That is a far cry from saying that no other kinds of claims are within the rule. On the contrary, it means that, in non-money-based claims (such as this one) the phrases ‘more advantageous’ and ‘at least as advantageous’ do not have a money-based meaning but are to be construed in the ordinary sense of the words. Any other reading would mean that the words “or money element of a claim” were redundant.”

Assessment of costs on the indemnity basis, and the other benefits outlined in CPR 36.17 were subsequently agreed by the Defendants, save for a dispute on the amount of interest.

Conclusion and discussion

This case underpins the importance of demonstrating not just ‘developments’, but significant developments when seeking to vary a costs budget under CPR rule 3.15A, and the Court’s decision highlights the high bar for such applications. The Court did comment in this matter that, whilst no formal application to vary was required, the lack of evidence in support of the variation was troubling and suggests that parties seeking to vary in future cases, could prepare short witness statements in support of requests.

Comments were also made obiter dicta regarding the fact that costs budgets are not limits on costs being incurred, and there was nothing to prevent additional sums being sought at an assessment is which takes place later. This would be on the grounds of there being ‘good reason to depart’ from budgeted sums, pursuant to CPR 3.18 (b). Albeit it can be argued that the bar for seeking such departure is a high one to overcome.

The fact that the costs which were subject of the request for variation were to be assessed on the indemnity basis, brings into question the benefit to Claimant in making requests pursuant to CPR 3.15A after Trial. It should be remembered that prima facie, cost budgeting is only relevant when costs are to be assessed on the standard basis, and reference is made to the decisions in Lejonvarn v Burgess & Anor [2020] EWCA Civ 114 and Denton and Others v TH White Limited [2014] EWCA Civ 906.

This blog was co-written by Daniel Murray.

We are regularly instructed to advise on costs budgets and variations. Please contact us if you have any questions.

Katie Spencer is a Paralegal in Clarion’s Costs and Litigation Team and can be contacted on 07741 988 925 or at katie.spencer@clarionsolicitors.com.

Daniel Murray is a Senior Associate and Costs Lawyer in Clarion’s Costs and Litigation Funding Team and can be contacted on 07918 271 397 or at daniel.murray@clarionsolicitors.com.

Guidance on interim payments within Court of Protection

Casey McGregorLeave a comment

Practice Direction 19B sets out the guidance on the deputy costs and the charging structure. The guidance states that a deputy can receive an interim payment in advance of the assessment for the year, which is proportionate and reasonable. It is noted that the overall level of interim payments received cannot exceed 75% of their estimated costs submitted to the Office of the Public Guardian or the WIP (whichever is lower) within a reporting year.

If you have a situation whereby, the interim payment taken exceeded your estimated costs or the WIP, you will need to credit note and refund this overpayment immediately.

Once the bill is assessed by the SCCO, and a final costs certificate has been issued, the Deputy will be entitled to receive the balance for that year, which would be the difference between the total of interim payments received during the year and the total assessed costs as set out in the final costs certificate.

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

What Fixed Costs can be taken within Court of Protection cases?

Casey McGregorLeave a comment

Practice Direction 19 (b) sets out the fixed costs that may be claimed by solicitors and public authorities acting in Court of Protection proceedings. In line with the Practice Direction, the revised fixed fees for the Court of Protection, effective from 1 December 2017 is as follows:

 Fixed Fee (plus VAT)
Appointment of Financial and Property Deputy£950.00
Appointment of Health and Welfare Deputy£555.00
Appointment of a Trustee£500.00
First General Management Year£1670.00
General Management for the second and subsequent management years£1320.00
Preparation of the Deputyship Report£265.00
Preparation of the basic HMRC income tax return£250.00
Preparation of the complex HMRC income tax return£600.00
ConveyancingA value element of 0.15% of the consideration with a minimum sum of £400.00 and a maximum sum of £1,670.0 plus disbursements.
Interim PaymentsUp to 75% of the WIP incurred

If you take the fixed cost available, you forfeit the right to an assessment later down the line. If you have authority for the assessment of costs in your Order and you will exceed the fixed cost amount, we recommend that you opt for assessment instead as it’s very likely that you’ll recover more than the above amount. Despite several hourly rate changes in recent years, fixed costs have not changed, so they remain at a low level which most practitioners do not consider suitable for their cases.

The link to the Practice Direction can be found at: https://www.judiciary.uk/publications/fixed-costs-in-the-court-of-protection/

If you have any questions, please do not hesitate to contact Casey Mcgregor at casey.mcgregor@clarionsolicitors.com