Negotiating Budgets

In cases where costs management applies, how much your client can recover depends on good negotiation at the costs management stage.

Sue Fox is a Senior Associate in the Clarion Costs Department specialising in costs management. You can contact sue on 0113 336 3389 or by email to sue.fox@clarionsolicitors.com

New Rules for Damages Based Agreements

In October 2019 proposals to reform the Damages Based Agreement (DBA) Regulations were published. Here I give a brief rundown of what the new proposals mean.

The Law Society has recently published a more detailed analysis of the key points which can be viewed here.

Matthew Rose is a Solicitor in the Clarion Costs Team. You can contact him on 0113 222 3248 or by email to matthew.rose@clarionsolicitors.com.

 

 

Coronavirus Update: Bar Council guidance on attendance at Court

The Bar Council has today given further guidance to its members that advocates should not attend hearings in person unless they are “genuinely urgent” and cannot be done remotely. However, it is anticipated that such a hearing will be a rare occurrence.

My standing advice is that where a hearing is listed, practitioners should contact the court as soon as possible and ask for guidance. I recently wrote to the County Court at Huddersfield and asked what procedures are currently in place; I received a response today stating that “all hearings will be adjourned: you will be contacted before the hearing”.

The situation continues to develop rapidly and therefore it is likely that the position in relation to hearings will change.

Matthew Rose is a solicitor in the Clarion Costs Department. You can contact him on 0113 222 3248 or by email at Matthew.Rose@clarionsolicitors.com.

Coronavirus Update: Attendance at Court and “Key Worker” status

The Bar Council has recently announced new guidance for barristers on attendance at Court and on “Key Worker” status. 

Attending Court

HMCTS has informed the bar council that “listing officers are working urgently to let people know what is happening but a good ‘rule of thumb’ is that if the trial is underway, the default is to attend unless the court tells you otherwise, but if the trial has not started the default is to stay away unless told to attend”.

HMCTS is advising in the Magistrates Court, that ‘it is best to attend if you are expecting to work today’.

In my view, where a hearing of any kind is currently listed, practitioners should keep in regular contact with the court to confirm the status of the hearing. For more information about standing advice in relation to hearings as well as some hints for working from home and dealing with the practicalities of hearings you can view my Coronavirus Update video here posted Friday 20th March 2020:

Up-to-the-minute guidance is available from the Courts on the HMCTS website.

Key worker status updated

The government has acknowledged that legal practitioners are fundamental to the running of the justice system and The Department for Education has just issued further guidance on which legal practitioners come within the limited category of key workers whose children may continue to attend school or nursery whilst they deliver essential services:

  • Advocates (including solicitor advocates) required to appear before a court or tribunal (remotely or in person), including prosecutors;
  • Other legal practitioners required to support the administration of justice including duty solicitors (police station and court) and barristers, solicitors, legal executives, paralegals and others who work on imminent or ongoing court or tribunal hearings;
  • Solicitors acting in connection with the execution of wills, and
  • Solicitors and barristers advising people living in institutions or deprived of their liberty.

Practitioners are responsible for deciding for themselves whether they fall within these categories.

Clarion continues to be open for business, with some changes in working practices to ensure that the safety of our clients and employees remains our top priority. Matthew Rose is a solicitor and you can contact him on 0113 222 3248 or by email to Matthew.Rose@clarionsolicitors.com

Coronavirus: Working Under Lockdown

Coronavirus has caused widespread disruption. This brief update lets you know the Courts’ current approach, and how you can work effectively under lockdown.

Further information and our newsletter containing an explanation of how to sign documents electronically can be found here

Matthew Rose is a Solicitor in the Costs team. You can contact him on 0113 222 3248. Clarion Solicitors remains open for business as normal, with enhanced processes to ensure the safety of our clients and staff.

 

Delays In Bringing Applications in the Court of Protection

The issue of delays in bringing applications on behalf of P within the Court of Protection was recently outlined in the case Cardiff & Vale University Health Board v P [2020] EWCOP 8

The focus of the case was in reference to the dental treatment for P. P was a severely autistic 17 year old with very little ability to communicate directly.

P was required to undergo a CT scan in January 2019 to ascertain if he required any dental treatment. The CT scan shown that P had sustained decay which had impacted on his wisdom teeth.

Following on from this, P’s parents observed that P began banging his head against a wall in October 2019. They believed this to be a response to the dental pain he was suffering, however P was unable to communicate this directly. As P’s behaviour deteriorated, P’s parents were concerned that P could have been suffering with concussion, or sustained a head injury such as a fractured skull as a result of him banging his head against walls.

A main issue with the case was that the application to Court in respect of P’s requirement of dental treatment was only made on 20th February 2020. In his judgement, Hayden J expressed his concerns at the delays in bringing the application. He stated:

‘This is the second time in the last few months when I have heard a case which reveals that a vulnerable person has fallen through the net the system tries to provide. Here, P has been permitted to suffer avoidably for many months. His needs, it requires to be said, have simply not been met. The philosophy of the Mental Capacity Act 2005 is to enable those who are vulnerable in consequence of incapacity to have equality of opportunity with their capacious co-evals. Here, P’s capacity, his inability to communicate his distress, led to a failure to provide him with appropriate medical treatment’.

P should not have been made to wait several months for an application to be made, particularly given the significant pain he was clearly in, and his inability to communicate the same to anyone.

 

Levels of contact in Court of Protection cases – what is reasonable?

The Case of Trudy Samler 2001 considers the level of costs incurred regarding contact and whether this is reasonable. The case looks into whether these costs are instigated by the Protected Party and whether the Deputy should be expected to be paid for them. Master O’Hare advised that part of the Deputy’s duty is to prevent such expenses being incurred as it is their responsibility to look after the Protected Party’s financial affairs. The Office of the Public Guardian and the Senior Court Costs Office advise that only one home visit per year is reasonable in routine general management costs unless there is reasonable justification for more attendances. Deputies should be prepared to give reason if several attendances have occurred during one management period.

The case concerned a young lady who suffered severe brain injuries who was subsequently awarded substantial damages. A professional Deputy was appointed by the Court to manager her property and financial affairs. The Deputy’s bill of costs was lodged on October 2000 and provisionally assessed by Costs Officer Edwards on 21 November 2000. By way of a letter dated January 2001, the Deputy did not accept the provisional assessment and set out in numbered paragraphs the reasons relied on in support of the restoration of the costs, which had been disallowed on assessment. On 13 February 2001, a hearing took place and some of the reasonable costs were restored. However, the Deputy still felt that some of the other items disallowed could be justified and restored and so by way of a letter dated 23 February 2001, sought the guidance of Mr R Stone at the Public Trust Office.

The letter included five questions to be referred to the Master of the Court of Protection. The appeal related to work done by the Deputy in relation to three interviews with the Protected Party and four meetings at St Andrews Hospital. An allowance had been made for two meetings, which in total were equal to four hours. At the hearing, the Deputy gave background to the matter and explained some of the attendance notes of the meetings that were in question.

The five numbered questions are set out below:

  1. Can the Deputy be paid for speaking to both carers and case managers to talk about the care and rehabilitation regime and the Protected Party’s well being and needs, assuming that the time spent is not excessive?

Master O’Hare advised that in his view, the Deputy can be paid if the issues discussed are substantial, if there is no alternate person to speak for the Protected Party and if the Protected Party’s estate is large enough to justify such expense.

  • Can the Deputy be paid for all contact with the Protected Party instigated by the Protected Party irrespective of the matters being raised?

Master O’Hare advised that his answer would be no. He confirmed that the Deputy should strive to minimise and avoid necessary expense. Master O’Hare further confirmed that he accepts that each case depends on its own circumstances.

  • Can the Deputy be paid for discussions with the family about the care requirements, existing care regimes, possibility for changes in the future?

Master O’Hare confirmed that the answer he gave to question one seemed to be appropriate for this question.

  • Can the Deputy be paid for discussions with the Protected Party, family, carers and case managers where there are difficulties with the care regime if the Deputy believes that the current regime is in the Protected Party’s best interests or would be subject to proper amendment?

Master O’Hare advised that his answer to question one and 3 apply equally here.

  • Can the Deputy be paid for quarterly visits to the Protected Party to deal with reporting on budgeting, asset performance, income and expenditure?

Master O’Hare advised that the practice for many years has been that it is easy for a Deputy to justify one visit to the Protected Party each year but that each succeeding visit must be separately justified. He also confirmed that the questions that usually arise in respect of this are:

  • Could the subject matter of the later visit have been dealt with at the earlier one, or postponed to a later one?
  • Could the progress made by the meeting have been achieved more economically by way of a telephone call or correspondence?
  • Was the Protected Party and his or her family if any (meaning here any adult relatives with whom he or she resides or in whose care he or she is) warned that the costs of such meeting and the costs of time spent travelling and travel expenses, will all be charged?
  • If the meeting involves time spent travelling by the Deputy, could this travel have been arranged so that the cost of it could be apportioned with other cases handled by the Deputy?

Master O’Hare advised that each case depends on its circumstances and with some Protected Party’s, the number of visits in the early months might be higher than the number of visits once a reasonable pattern has been established.