Tag: costs lawyer leeds

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

Your Bitcoin is no good here, ‘I need something more real’ orders the High Court

Daniel MurrayLeave a comment

Further guidance has been given on several issues in relation to security for costs, in the recent case of Tulip Trading Ltd v Bitcoin Association for BSV, which is one of the cases currently ongoing and involving the creator of the crypto currency, Bitcoin.

The guidance comes following an initial hearing whereby an order granting security on grounds of impecuniosity had been made. It was agreed between the parties that the amount to be ordered as security for the Defendant, and the liability for and amount of the costs of the security applications would be determined on written submissions without a hearing.

Principles

Master Clark, delivering judgment, summarised several principles in relation to the quantifying of security. He confirmed that the relevant principles were those set out in the 2021 White Book at 25.12.7, and summarised in Pisante v Logothesis [2020] EWHC :

“(i) The appropriate quantum is a matter for the court’s discretion, the overall question being what is just in all the circumstances of the case. In approaching the exercise, the court will not attempt to conduct an exercise similar to a detailed assessment, but will instead approach the evidence as to the amount of costs which will be incurred on a robust basis and applying a broad brush (see also Excalibur Ventures v Texas Keystone [2012] EWHC 975 (QB) § 15).

(ii) In some cases, the court may apply an overall percentage discount to a schedule of costs having regard to (a) the uncertainties of litigation, including the possibility of early settlement and (b) the fact that the costs estimate prepared for the application may well include some detailed items which the claimant could later successfully challenge on a detailed assessment between litigants. There is no hard and fast rule as to the percentage discount to apply. Each case has to be decided upon its own circumstances and it is not always appropriate to make any discount.

(iii) In deciding the amount of security to award, the court may take into account the “balance of prejudice” as it is sometimes called: a comparison between the harm the applicant would suffer if too little security is given and the harm the claimant would suffer if the amount secured is too high. The balance usually favours the applicant: an under-secured applicant will be unable to recover the balance of the costs which is unsecured whereas, if the applicant is not subsequently awarded costs, or if too much security is given, the claimant may suffer only the cost of having to put up security, or the excess amount of security, as the case may be (see also Excalibur § 18).

…(v) In determining the amount of security, the court must take into account the amount that the respondent is likely to be able to raise. The court should not normally make continuation of their claim dependent upon a condition which it is.

Issues as to the amount

There were three issues of principle which arose between the parties as to the amount of security which was to be awarded:

(1) whether the starting point should be that no reduction will be made on assessment;

(2) whether the court should consider and take into account the likelihood that costs would be awarded on the indemnity basis;

(3) the extent to which the court should take into account the Guideline Hourly Rates applicable to summary assessment.

With regards to the first principle, Master Clark refused to award the entirety of the costs as claimed, and distinguished from caselaw relied upon by the Defendants. It was determined that these were not relevant authorities on the basis that security had been granted under the non-residence condition (CPR24.13(2)(a)) and the Judge had applied a discount to the amount awarded to reflect a sliding scale of risk of non-enforcement.

The relevance of a potential final indemnity costs order was given little weight by Master Clark, who was unwilling to determine the security amount on this assumption, as he was unwilling to determine the merits of the claim at that stage.

It was determined that the case was of such significant complexity and value (over $4 billion) to attract rates in excess of the guideline hourly rates, and as such it was confirmed that these were of limited assistance.

Amount of security to be ordered: discussion and conclusions

It was determined that security for70% of the Defendants incurred and estimated costs would be ordered once all issues had been considered.

Once this had been determined, the Defendants sought security in one of the two usual methods; through payment into the Court, or via bank guarantee given by a reputable first class London bank.

The Claimant however, proposed that security be given by the transfer of digital assets to their own Solicitors. Namely, two forms of Bitcoin, with the proviso that a 10% buffer in addition to the value of the security be transferred and written confirmation of the transfer be provided, along with the public addresses of the Bitcoin. The 10% buffer was proposed to address the volatility in the value of Bitcoin.

Master Clark rejected the Claimant’s proposals, stating:

“The security offered by the claimant would not result in protection for the defendants equal to a payment into court, or first class guarantee. It would expose them to a risk to which they would not be exposed with the usual forms of security: namely of a fall in value of Bitcoin, which could result in their security being effectively valueless. The top-up provisions proposed by the claimant do not fully meet this risk,…”

Given the ever growing popularity of crypto currency, the case is unlikely to be the final occasion in which payment using crypto currency or other digital assets as opposed to traditional currency is proposed. Especially given the current Master of the Rolls, Sir Geoffrey Vos’, enthusiasm for the legal profession to embrace technology. Whilst highly uncertain at the moment, the long term stability of Bitcoin is likely to be determined the more it spreads into the mainstream in our economy. Should this occur in the coming years, then perhaps we will be in a position whereby the payment of damages and costs will be ordered by non traditional forms of currency?

Should you have any queries regarding an application for security for costs you can find out more about our services here or you can contact the Costs and Litigation Funding team at CivilCosts@clarionsolicitors.com

Guideline Hourly Rates 2021 & Other Changes Impacting COP Costs

Laura SugarmanLeave a comment

From 1st October 2021, the new Guideline Hourly Rates will come into force. This means that from this date, subject to your retainer/client care letter, you will be able to claim the new hourly rates. The new rates are as follows:

 Grade AGrade BGrade CGrade D
London 1£512£348£270£186
London 2£373£289£244£139
London 3£282£232 £185£129
National 1£261£218£178£126
National 2£255£218£177 £126

The new Guideline Hourly Rates will displace Master Whalan’s decision in PLK & Others (2020). The new GHR differ across geographical locations, but overall, they are increased from the outdated 2010 GHR. For most junior fee earners, the increase is less than those awarded in PLK & Others.

In respect of Court of Protection costs specifically, the report quotes Master Whalan in the decision of PLK & Others, where he concluded that ‘ultimately I am not satisfied that the evidence supports Mr Wilcock’s contention that COP firms have experienced a significant increase in hard and soft overheads’.

It was also noted that ‘in general, however, COP assessments can be conducted by costs officers utilising the GHR as the reasonable hourly rate. The issue as to the appropriate status or grade of fee earner for the work in question will always be a matter for discretion of costs officers and/or costs judges’. When considering the PLK rates, the decision was made that ‘the GHR rates (if approved) are the rates to be used, not the PLK rates’.

The impact of this for Court of Protection practitioners is that the rates stated in the PLK & Others judgment dated 30 September 2020, as set out below, will no longer apply to costs to be assessed by the Senior Courts Costs Office, and that the new GHR will instead be applicable.

As well as this, there will also be an increase to Court fees which will also impact COP matters. The new Court fees will impact all COP matters, with the COP assessment fee increasing from £85 to £87. The cost of a costs appeal in COP matters will increase from £65 to £70.

Alongside policy change, there have been many changes at the SCCO too with several experienced Costs Officers leaving or retiring, creating inconsistent assessments and large delays.

In addition, the proposed COP E-Bill is almost ready for consultation and once approved, will create a more streamlined assessment process. The SCCO are also now accepting electronic PDF bundles for assessment, which is positive news for the environment. However, electronic systems are not without their flaws and it’s likely to take some time for the SCCO to adapt fully.

If you have any questions about any of the issues raised, please contact Laura Gillin at Laura.Gillin@clarionsolicitors.com

Proposed increases to court fees to proceed

Bethany CollingsLeave a comment

Court and Tribunal Fees – The Government response to the consultation on ‘Increasing selected court fees and Help with Fees income thresholds by inflation’

Following a consultation process, the Government will be proceeding with proposed increases to Court fees. the changes are likely to come into force in early Autumn. The proposed fee increases reflect inflation and are not therefore real terms increases.

The proposed increases will effect the costs  of detailed assessment as set out below.

DescriptionCurrent FeeIncreaseFinal fee  
Assessment of costs (under Part 3, Solicitors Act 1974)  £55+£4£59
Where the party filing the request is legally aided  £220+£17£237
Costs up to £15000  £369+£29£398  
Costs £15000 – £50000  £743+£58£801  
Costs £50000 – £100000  £1,106+£86£1,192  
Costs £100000 – £150000  £1,480  +£115  £1,595  
Costs £150000 – £200000  £1,848  +£144  £1,992  
Costs £200000 – £300000  £2,772  +£216  £2,988  
Costs £300000 – £500000  £4,620  +£360  £4,980  
Costs Above £500000  £6,160  +£480  £6,640  
Issue of default costs certificate£66  +£5  £71  
Appeal (detailed assessment proceedings)£231  +£18  £249  
Request/application to set aside a default costs certificate  £121+£9£130  

There will also be an effect on the costs of assessment in Court of Protection cases:

On the filing of a request for detailed assessment for Court of Protection  £85£2£87  
Appeal against a Court of Protection costs assessment decision  £65£5£70  

Bethany Collings is an apprentice paralegal in our Costs and Litigation Funding team. If you have any questions, please contact her on 0113 227 3607 or at Bethany.Collings@clarionsolicitors.com

Mis-Certification of a Bill of Costs – Be careful!

Andrew McAulayLeave a comment

Back in May, I posted a Vlog about the SRA’s decision following the Court of Appeal’s Judgment in Gempride v Bamrah [2018] EWCA Civ 1367. You can view that Vlog here.

I was therefore very interested to read the recent decision of Master James in the case of Farmer v The Chief Constable of Lancashire [2019] EWHC B18 (Costs) and to share it with you. Here are the key points:

  1. Mr Farmer (“the Receiving Party”) had the benefit of a costs order against the Defendant (“the Paying Party”).
  2. A Bill of Costs was prepared, and detailed assessment proceedings were commenced. The original Bill of Costs totalled £174,565.79.
  3. There were issues over the validity of Conditional Fee Agreements, recoverability of success fees and incorrect hourly rates which led to the service of an amended bill in the sum of £116,192.50.  That total was also incorrect, and the Court found that the bill should have been drawn in the region of £66,000 to £69,000.
  4. The Bill of Costs had been certified as accurate and true. Certain points/items were also maintained through Replies and a Witness Statement.
  5. Had the Bill of Costs been prepared correctly, then the matter would have been dealt with under the Provisional Assessment scheme. This would have saved substantial time and cost for each party and the Court.
  6. There were also costs included in the Bill of Costs which were not recoverable inter-partes.
  7. The Paying party applied to strike out the remainder of the Bill of Costs, pursuant to CPR 44.11.
  8. The Court struck out the remainder of the Bill of Costs; the Receiving Party was entitled to nothing.
  9. The Receiving Party was ordered to pay the costs of the detailed assessment and re-pay the payments on account received.

In Gempride the penalty reduction was 50%. In this case the penalty reduction was a full strike out of the remainder of the costs (circa. £66,000.00 – £69,000.00).

It is fundamentally important to ensure a Bill of Costs has been prepared correctly before you certify it. Mis-certification of a Bill of Costs is a serious issue.

Mistakes happen and the Court will look more favourably on innocent mistakes which are rectified quickly. In this case, the Receiving Party pursued the matter to detailed assessment and maintained retainers that were clearly not enforceable.  

In my Vlog in May, I provided 5 tips to help ensure that you avoid any mis-certification issues. Please view the Vlog to help you check a Bill of Costs (or a costs budget or statement of costs for summary assessment) correctly and to stay clear of any mis-certification arguments and costs penalties. You might want to use my 5 tips to create an internal check-list.

This blog was written by Andrew McAulay. Andrew is a Partner at Clarion and the Head of the Costs and Litigation Funding Team. Andrew can be contacted on 0113 336 3334 or at andrew.mcaulay@clarionsolicitors.com

COVID-19 update: face to face hearings

Joanne ChaseLeave a comment

HMCTS are consolidating the work of the courts and tribunals into fewer buildings. It has been announced that from Monday 30 March 2020 there will be a network of priority courts that will remain open during the coronavirus pandemic to make sure the justice system continues to operate effectively.

Fewer than half of all court and tribunal buildings will remain open for physical hearings, with 157 priority court and tribunal buildings remaining open for essential face-to-face hearings. This represents 42% of the 370 crown, magistrates, county and family courts and tribunals across England and Wales.

To help maintain a core justice system that is focused on the most essential cases there will be open courts, staffed courts and suspended courts.

The Judiciary recommend that you check which courts are open before you travel.  For information regarding the category of each court please follow this link.

Lord Chancellor Robert Buckland has said that it is vital that we keep our courts running. and that:

“An extraordinary amount of hard work has gone into keeping our justice system functioning. Technology is being used creatively to ensure that many cases can continue. Not everything can be dealt with remotely and so we need to maintain functioning courts.

These temporary adjustments to how we use the court estate will help ensure that we can continue to deal with work appropriately in all jurisdictions whilst safeguarding the well-being of all those who work in and visit the courts”.

Staffed courts will support video and telephone hearings and progress cases without hearings and ensure continued access to justice.

The remaining courts and tribunals will close temporarily and these measures will be kept in place for as long as necessary.

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