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

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

On what basis are the reductions made?

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

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

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

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

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

Are the Deputyship firm expected to cover the reductions?

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

Do Counsel have a right to dispute the reductions?

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

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

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

Advertisements