Can you recover your costs for time spent delegating in COP cases?

My talented colleague, Helen Spalding recently wrote a blog about the decision in  Fuseon Ltd, R. This costs claim arose from a private prosecution by Fuseon Ltd, a Lancashire based letting agency, against a Director of the business who had committed fraud and theft of over £100,000 relating to tenancy deposits, personal expenses and false invoices. You may be thinking, what does this have to do with Court of Protection costs?

In the decision, Master Gordon-Saker touched on inter-fee earner discussions and duplication. Detailed guidance was provided in respect of what is and is not recoverable in this regard in paragraphs 42 through 44. Master Gordon-Saker confirmed that reasonable time spent in inter-fee earner discussions is properly allowable. It is difficult to delegate tasks to junior fee earners without instructing them what to do and the reasonable time of the delegator and delegate is usually now considered to be recoverable.

Whilst this is not a COP case, this clearly shows that reasonable time spent delegating is not only expected, but should be recovered. So why does this not happen consistently in COP cases?

The Senior Courts Costs Office rely on the decision in Tina Jayne Cloughton (1999) and regularly note this on assessments to reduce or disallow time spent delegating, but it is unclear why a 21 year old decision is quoted, when we have new case law which clearly contradicts it.

There are many historic cases which are regularly referred to in COP assessments which are arguably outdated and no longer applicable. There is increasing frustration amongst professional deputies because COP work is still considered more routine than other areas of law, despite the significant responsibilities personally placed on deputies and the niche, complex and important issues which are dealt with every day. Delegation is particularly relevant to COP cases because most work is expected to be undertaken by Grade D and C fee earners, but how can that be achieved without some input, guidance and delegation from senior fee earners, who bear the responsibility and authority?

We hope that the message in the recent decision in Fuseon Ltd, R. will filter through to COP cases, and we will continue to recommend that reasonable time spent delegating complex work and communicating with colleagues is claimed within the bill of costs.

If you would like to know more, please contact stephanie.kaye@clarionsolicitors.com or call 0113 3363402.

 

 

 

 

KKL Executor & Trustee Company Ltd v Harrison (2020) – Is it cynical for a professional Deputy to expect to be paid?

The short answer is no. The above case concerned an elderly woman (OT, the Protected Party) in Leeds who lacks capacity to deal with her property and financial affairs. KKL is a trust corporation working closely with (both in terms of being the subsidiary of and working from the same office with) a charity called JNF Charitable Trust (“JNF UK”). Ms Harrison made an application to be appointed as property and affairs Deputy for the Protected Party and KKL lodged a competing application, on the basis that they were well known to the Protected Party and they felt that they were best placed to act as Deputy.

For the purposes of the proceedings, Ms Harrison acted as Respondent to KKL’s application to be appointed as Deputy. Ms Harrison’s objection to KKL’s application was based on three key issues. The first was KKL’s lack of independence from JNF UK and the potential for a conflict of interest to arise between the Protected Party’s interests and the interests of JNF UK as the main and residuary beneficiary of the Protected Party’s latest will.  The second was KKL’s lack of experience as a property and affairs Deputy and the third was KKL’s geographical distance from the Protected Party, and their apparent conflict with others with whom the Deputy would need to work in the Protected Party’s best interests pursuant to section 4(7) of the Mental Capacity Act 2005.

Within KKL’s arguments against Ms Harrison being appointed as Deputy, they raised the issue of costs. They said that the standard wording within the application for costs to be assessed on the standard basis was “a cosy arrangement regarding costs that is buried in the small print of her application”.  Judge Geddes responded to say that this was “(literally) factually wrong” and that the application “reflects standard wording within the templates produced by the Court of Protection”.

KKL also raised questions as to the fact that social services consulted a lawyer from the Lawdesk Panel of Private Client Lawyers about their concerns over the Protected Party’s mental capacity and her ability to manage her own finances. Judge Geddes responded to say the there is a risk to Clarion Solicitors of acting in such cases in that “if their application were rejected they might be left to bear their own costs of bringing the application which they do so purportedly in the Protected Party’s interests.” Judge Geddes quashed any notion that is was inappropriate and continued to say, “Of course, in this limited sense they have an interest in either the success of the application or at least in not being criticised for bringing the application to the point of disapplication of the general rule about costs contained in rule 19.2 of the Court of Protection Rules 2017 namely that “Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings… shall be paid by P or charged to P’s estate”.

Further in respect of costs, Judge Geddes responded to KKL’s arguments, stating “It will be a matter for submissions on costs whether or not the conduct of either party has been unreasonable or should be marked with the court’s disapproval by disapplying the usual rule.  So long as the proposed deputy is acting in good faith, however, I would not consider their expectation of having their costs paid in accordance with the usual rule out of P’s estate could be considered “cynical”. It remains that the starting point for professionals is to expect to have their costs assessed and paid from the estate.”

Judge Geddes acknowledged that it would be cheaper to appoint KKL rather than Ms Harrison, but overall, found it to be in the Protected Party’s best interests for Lynsey Harrison to be appointed as Deputy. It was ordered that costs incurred by Clarion Solicitors could be assessed and paid from the estate.

It is clear from this case that professional Deputies are not expected to be limited to fixed costs and the starting point is that they should be paid, subject to detailed assessment, for their hard work in managing property and affairs.

If you have any questions, please contact Stephanie Kaye at Stephanie.kaye@clarionsolicitors.com or call 0113 3363402.

Lockdown Lowdown – Russell Caller

This blog forms part of a series of weekly interviews with several professionals during lockdown. It aims to inform Deputies and their teams about how each organisation within the field of Court of Protection has adapted to Covid-19 and what they should be aware of. Our fourth participant for Lockdown Lowdown is Russell Caller who is a Director of the Professional Deputies Forum (the PDF), and a professional deputy himself at Gillhams Solicitors in London.

It’s been over a year now since the PDF’s formation. What has happened in that year for the PDF?

A lot! We launched last March (2019) in Leeds at the offices of Clarion and we are very grateful to Clarion for sponsoring that event which “got us off the ground”. In the last year, we have gained the ear of the Office of the Public Guardian, the Ministry of Justice, the Senior Courts Costs Office, the Official Solicitor and the Court of Protection. As we speak, we are about to go to court in the SCCO to hopefully achieve some sort of increase in rates, in addition to pushing a review of the Guidance Rates at the end of the year. We are also taking a leading role in the discussion on the recent decision of ACC & Others.

How many members does the PDF now have?

We currently represent over 5,300 solicitor professional deputy appointments. There are only 9000 in total, so the PDF represents the majority of such appointments.

What are the benefits of membership?

There are 6 key benefits:

  1. Representation for Deputies to give them a voice. That is our unique selling point, as this is the first time ever that Professional Deputies are represented.
  2. There are inequities in the COP system and there are some structural issues that need reviewing in the current regulatory scheme. In our view, not all the stakeholders are “singing off the same hymn sheet” and it is important that this is addressed. The stakeholders (OPG, SCCO, MOJ, etc.) have developed over time but there needs to be consistency between what each stakeholder is asking for from professional deputies, otherwise the system doesn’t work. We are trying to set up a meeting with all stakeholders to discuss the areas which need looking at, in the hope that we can address this collectively and have a more joined up approach.
  3. We are fighting for sustainability of the whole professional deputyship system. We are “tottering on the edge” as we cannot afford to pay paralegals their true value.  Some Law firms are saying it is uneconomic to have COP departments and that means a reduction in the service being offered. If the professional deputyship service is to continue in England and Wales, we need to tackle these fundamental issues and the PDF is pushing hard for that.
  4. We are putting the solicitor professional deputy at the heart of the discussion for the first time ever. We are in discussion with all the main stakeholders.
  5. We have a resource section on our website for all members.
  6. We listen to our members and act on their views!

How can the PDF help professional Deputies and why is it key to be involved?

It is essential to be involved for all the reasons set out in the answer to the previous question. We are and will be taken seriously by the COP stakeholders and that is precisely what is happening. The PDF is a catalyst for change. We are very focused – our message is very clear- we are here to represent and protect the Solicitor professional deputy. Firstly, we need to make the system sustainable. Simply put, the greater the membership of the PDF, the more the stakeholders engage with us- they have little option to but to engage and listen to us and respond appropriately.

Do you have any concerns for professional Deputies caused by COVID-19?

Very much so! Deputies cannot gain access to Care Homes to visit the vulnerable, they have difficulty in reaching social services, doctors and other professionals as easily and cannot get things done quickly enough! My other worry is that law firms have had to furlough members of staff too, so the number of support staff has been hit, who deputy teams rely heavily on.

What are the PDF’s objectives for 2020/21?

We have several objectives which tie nicely into the benefits of being a member (see above). We want to improve the relationship between the OPG and solicitor professional deputies and challenge some of the ills of the current regulatory scheme. For example, review the OPG professional standards and how these can be achieved by deputies, without being  financially penalised for meeting the criteria. We also want to open a dialogue with the COP to improve how it is run, including a dialogue with court staff and with the judges. Where appropriate, we want to challenge MOJ policy in the deputyship world to improve and provide clarity for all deputies in the system.

Following the case of ACC & Others earlier this year, we want to make further representation on behalf of deputies to address the many unintended consequences of this case. This includes engaging with other organisations within the COP world to discuss the correct approach to the court.

We also want to achieve a pay increase for solicitor professional deputies, which will provide financial sustainability and a clear career path for younger and junior professionals practicing in this area.

We are always looking for feedback from our members and others who work in the COP profession. We are a young organisation and we know that we will make mistakes, so if anyone has some good feedback on what we do well and what we don’t do so well, we would really like to hear that so we can continue to develop.

What do you think the future holds for professional Deputies?

It is very difficult to say. Unless and until being a solicitor professional deputy becomes financially sustainable, the future is not good. We need to tackle this head on, which is what we are doing at this very minute! As I mentioned previously, we have a case being heard in the SCCO  this coming week in respect of rates of pay for solicitor professional deputies, which we hope will provide some certainty in this area, then we can start to address the inequities in the system.

How has the PDF adapted to lockdown?

One of the benefits of the PDF is that we have just 4 directors and we have a small working group, so decisions can be made easily which allows us to be “fleet of foot”. We very quickly launched our very popular “Fireside Chats” on Zoom and all the major stakeholders have come to be interviewed, which has been great! The use of Zoom and Teams has been a real advantage for the PDF, so we’re not complaining- we are firing on all cylinders!

How have you personally been keeping busy in lockdown?

I am becoming an expert in managing meetings and presentations through Zoom and Teams. I am learning new skills every day. I am Chair of a Shepherds Bush Housing Group and I now lead board meetings of up to 20 people, which isn’t easy, but I love to try new things and so I am sort of enjoying myself! I miss the fun and banter of physically being in an office, but this period has given me a lot of time to think about life and what I want from it.

What are you most looking forward to after lockdown?

I have a passion for food! I love to eat out whenever I can and I think the best meal of the day is breakfast. Until the lockdown, the working group of the PDF used to meet in Central London at 8am for a breakfast meeting ( all paid for our of personal funds, I hasten to add!). It was great fun and I am really looking forward to getting back to those breakfast meetings! I have my first Grandchild due in September too, so I am especially looking forward to that.

Clarion would like to thank Russell for taking part in Lockdown Lowdown and would like to thank the PDF for their tireless efforts in trying to improve this area of practice. Coming up in the series, we will be hearing from Ria Baxendale from the OPG. If you would like to suggest another interviewee for Lockdown Lowdown, please contact Stephanie Kaye at stephanie.kaye@clarionsolicitors.com or call 0113 336 3402.

Lockdown Lowdown – Francesca Gardner

This blog forms part of a series of weekly interviews with several professionals during lockdown. It aims to inform Deputies and their teams about how each organisation within the field of Court of Protection has adapted to Covid-19 and what they should be aware of. Our third participant for Lockdown Lowdown is Francesca Gardner from Kings Chambers, who has chosen a hectic time to return from maternity leave!

How has the Court of Protection adapted to lockdown?

The COP has adapted extremely well, and at speed to the pandemic. The Vice President has been instrumental in ensuring that the court continues to function. Hayden J has released a number of helpful guidance documents. The reality is that there will be some cases that will be delayed but there is a clear and concerted effort from the court’s to ensure that urgent cases are being properly determined. For example, within days of the lockdown measures being announced by the government, the COP heard a Serious Medical Treatment case (over a number of days) via Zoom.

I know of and am involved in many cases that are being and are scheduled to be heard over the coming weeks.

What impact do you think this will have on professional Deputies?

I am optimistic that there will not be a significant impact upon deputies, save for the challenges in maintaining contact with P and any delays that may be faced as regards court proceedings. HMCTS has issued its ‘family business priorities’ for April 2020 setting out what work must be done, what work will be done and what work HMCTS will do its best to do. Property and Affairs work falls under the work that court ‘will do it’s best to do’, whilst this may be frustrating to deputies I am aware of several P&A cases being heard both in the regions and in London so whilst there may be delays I would hope that deputies will still have proper access to the court’s should they need it on behalf of P.

Have you learnt anything so far from the pandemic?

The importance of slowing down, as lawyers we work at 100mph and I hope that lockdown has forced us to re-evaluate a little and find a better balance going forward. I am thinking ‘pigs might fly’ as I write this.

Have there been any reoccurring issues that Deputies should be aware of?

The main issue in my view and that, which I am aware of, is contact with P and ensuring that communication between P and the deputy continues. It is important that deputies think creatively during the pandemic to ensure that they (and others) can maintain contact with P. For example and where possible the purchase of an iPad or a request to the staff at the care home and/or support staff to support P to use Skype may be of real benefit. In BP v Surrey County Council 2020 EWCOP 17, the Vice President of the Court of Protection, Hayden J, reiterated the importance of P maintaining contact with others and how this should be approached based on the specific needs of the person. For example, telephone contact would not be appropriate where the person is deaf, but Skype maybe and they should be supported to use that facility.

Do you think there will be any reoccurring issues that Protected Party’s face as a result of this?

I would like to think not but I think delay will be inevitable in some cases, particularly cases that are none urgent in nature.

What do you think Deputies should be thinking about?

Whilst it may be a very difficult time, deputies must remember that their roles and responsibilities remain the same throughout the pandemic, that includes in circumstances where the deputy may be self-isolating in line with the government guidelines. The Office of Public Guardian has provided some guidance for deputies during the pandemic, within the guidance it states:  ‘If you are self- isolating or shielding, you must continue to make decisions for P. You cannot ask anyone else to make those decisions for you.’ However, attorneys and deputies can make a decision and ask someone else to carry it out. The guidance reminds deputies that they do not have to step down in their role simply because they are unable to visit the person.

How have you been keeping busy during lockdown?

My little boy keeps me very busy, but returning to work has also kept me busy. I try to exercise alone as regularly as I can. Running has always been my ‘go to’ for exercise and its great for clearing your head, particularly with all that is going on at the moment.

What are you most looking forward to after lockdown?

Spending time with family and my little boy, it has been hard that no one has been able to see him so I am very much looking forward to that!

Clarion would like to thank Francesca for taking part in Lockdown Lowdown and for her helpful insight. Coming up in the series, we will be hearing from Ria Baxendale from the OPG. If you would like to suggest another interviewee for Lockdown Lowdown, please contact Stephanie Kaye at stephanie.kaye@clarionsolicitors.com or call 0113 336 3402.

Lockdown Lowdown- Master Haworth

This blog forms part of a series of weekly interviews with several professionals during lockdown. It aims to inform Deputies and their teams about how each organisation within the field of Court of Protection has adapted to Covid-19. Our second participant for Lockdown Lowdown is Master Peter Haworth from the Senior Courts Costs Office.

  • How has the SCCO adapted to lockdown?

I originally thought we wouldn’t cope very well at all, and thought we would lock up shop at the SCCO, but that hasn’t happened. It’s not just skeleton staff, but staff working from home and a team in the office on a very detailed rota. We have a dedicated COP team of at least 5 people in today and 6 people in tomorrow, so we are finding ways to continue whilst respecting social distancing. We have managed to obtain laptops which have been given to Costs Officers so, in addition to the team in the office, Costs Officers are dealing with work at home. We have 8 Costs Officers and all 8 of them are working, be it remotely or from the office and the people in the high risk category are having work delivered to them as opposed to collecting it themselves. The team really have worked hard to adapt and I’m tremendously proud of them. The judiciary are also getting on surprisingly well in lockdown. We’ve had a number of Zoom and Microsoft Teams calls which have been very successful, and it seems that the judiciary has moved on 50 years in 2 weeks. I don’t think we will ever go back to ‘normal’ and I suspect that, going forward, we will continue to work in this way wherever it is appropriate to do so. The Senior Costs Judge doesn’t want things to grind to a halt so, wherever possible, we are dealing with things via Skype, Zoom and Microsoft Teams. I’ve had 2 full-day hearings for two substantial costs matters and it works well. I’m fixing more Microsoft Teams meeting where I hope to take live evidence, which is something that I would not have thought possible. With COP work, one of the benefits of the e-filing system that was introduced in January is that I can access this sitting at home, pick up cases and deal with them without too much difficulty. Where I need papers, the majority are being sent to me via the local County Court using DX and I pick them up from there. Also, in COP, I have had a couple of Costs Officers who have said that provisional assessments have not been accepted, and the solicitors have requested an oral hearing, so I’ve been able to simply access the file using the e-file system and list them without delay. The Costs Masters meet virtually on a Friday morning to discuss work loads too, which is useful. We’ve had one Master off ill, but others have picked up the work in his absence. I thought it might be a prolonged holiday for us all but that’s not happened!

  • What impact do you think this will have on turnaround?

You won’t believe this but, whilst I’ve parroted on, I’ve had an email with an update so I have the exact figures, hot off the press for you! As of the 27th of April 2020, straight from the horse’s mouth, we have 656 cases in the office up to 7 weeks old, awaiting assessment. We have a further 257 waiting for supporting papers from the solicitors which have been e-filed and accepted and a further 464 in the e-filing queue waiting to be processed by the e-filing team. Essentially, we have a backlog of 1,200 cases. I’m not holding anything back from you, so hopefully you can appreciate the full picture. We have one Costs Officer who has been ill and there are 10 cases awaiting collection from them. In addition, we have 195 Final Costs Certificates waiting to be authorised, which are being prioritised at the moment above the assessments. We are in a position to deal with things at home, but the bottleneck is the admin team processing the e-filing. We are working with a 50% admin team in the office due to social distancing measures, so that is where the difficulty lies in the administration of all of those cases. I would hope that, once the rules are relaxed, we will have a full team in the office again. We have seen turnaround a lot worse than this, but I appreciate even more so as a former solicitor that cash flow is king, and I’m the first to understand that. If there is anything we can do to push this through, we will. E-filing proved to be a lot more complicated than anticipated and it has slowed things down, for which I sincerely apologise on behalf of the office.

  • Has the SCCO learnt anything so far from the pandemic?

We can work virtually and electronically, rather than with high chairs and quill pens! We will have to put it all together when we get back to normality and find a new way of working. I think that the lockdown experience will provide more benefits in the years to come and, to my mind, we will move forward a lot quicker now. The majority of firms don’t work with paper files anymore so, as night follows day, it must mean electronic files move up the queue for COP, but I don’t know what the timescales are for that. We have trialled this and the Costs Officers were happy to access the solicitors’ system to carry out the assessment but, for this to be successful, there will have to be protocols and security measures. Provided we can meet those, it will move forward. There is also the electronic bill which you know about (Stephanie Kaye and Andrew McAulay are part of the committee preparing a COP electronic bill). COP will not need the same level of complexity as the current electronic bill for inter partes work, so I would hope to see an electronic bill in motion by the end of this year, or early next year and the the rest will follow. So many questions will be up for grabs and only time will tell, but I’m sure the real impact will be known when we get back. It will push us out of the Victorian times and move us into the 21st century.

  • Have there been any regular issues with e-filing that Deputies should be aware of?

The hiccups have been loading it all up in the first place. With no electronic bill, it’s having to be scanned into the system and a paper copy prepared for assessment, then scanned back out to the solicitor. All the extra admin had meant that the bottleneck was even worse. Although the bill will have to be scanned to obtain a copy, the Costs Officers are sending a paper copy back to the solicitor after assessment and, from that point in time, the solicitor can electronically obtain the Final Costs Certificate. I hope this will solve some of the issues but this will be an ongoing problem, until the introduction of the electronic bill. From my own experience, the electronic bill is so much easier and it will speed up the process considerably in COP cases.

  • Is the SCCO still available by telephone?

Yes, they are answering the phone. You might have to wait a little bit longer due to fewer people in the office, but there are Cost Officers and Clerks available. If they can’t answer the query, they will email the Master who might email the representatives directly, which is speeding things up. Providing they are accredited legal representatives and not parties, I am more than happy to work in this way, as are my colleagues.

  • We’ve already touched on this, but do you think there will be a move to electronic files of papers for assessment in the future?

Yes. This is not in the public domain, but all I can say is that there is some movement towards a sort of ‘bundle bank’, which would mean that the SCCO is able to access an electronic bundle to carry out an assessment, rather than interrogating the solicitor’s system, which has been trialled already. That’s something that is being considered, and I’m sure lockdown will accelerate moves to electronic working.

  • The MOJ invited the panel of professionals last year to comment on several areas, including consistency of reductions on assessments. Is it likely that the SCCO will update its guidance for Costs Officers and professional Deputies to help with more consistent assessments?

We will wait and see what the responses are from the MOJ on that point. We can then take a fresh look at the guide knowing the full picture. Obviously, any move to the electronic bill or electronic files of papers will mean that the guide is updated too. It will be a work in progress.

  • What is the plan for your retirement?

I’ve done COP work in practice for many years. In 2006, I joined the SCCO and I couldn’t have been handed this work any quicker. I’ve worked almost exclusively from 2006 until last year or the year before on COP. Master James and Master Whalan will deal with COP after I retire. I think the senior judges would like all costs judges to deal with every aspect but in my mind, COP is specialist and you have to know what you’re doing, so I think it’s best kept with 2 or 3 judges. As for my retirement, I had planned to go on the 30th of September but in light of the current situation, I may find myself here until Christmas. The plan is to do more of what I enjoy, including sailing and hot air ballooning. A lot of my ballooning is abroad so I suspect even after lockdown, there will be difficulties with this. I might have to stay in the UK, although it’s tremendously difficult to fly a balloon in British weather! In 2021, I plan to take part in a balloon event across the English channel. I’ve done it once and I’d like to do it again – it’s much quicker than the ferry!

  • How have you been keeping busy during lockdown?

I felt that staying in a flat in London wouldn’t be ideal so I’ve come back up north. I’ve spent more time with Mrs Haworth than I have in the last 15 years! The north is a pretty part of the world so, when I haven’t been working, I’ve been out walking or doing things in the garden, albeit my work in the garden mainly involves supervising Mrs Haworth!

  • What are you most looking forward to after lockdown?

Meeting friends and going to the pub!!

Clarion would like to thank Master Haworth for taking part in Lockdown Lowdown. He and the SCCO continue to work extremely hard to service Court of Protection Costs work during this time. Coming up in the series, we will be hearing from Francesca Gardner from Kings Chambers and Ria Baxendale from the OPG. If you would like to suggest another interviewee for Lockdown Lowdown, please contact Stephanie Kaye at stephanie.kaye@clarionsolicitors.com or call 0113 336 3402.

 

 

Our tips to working from home during COVID-19

On behalf of the Costs and Litigation Funding Department at Clarion, we would like to thank all of our clients for being understanding and supportive during these uncertain times.

As we all are still adapting to the ‘new norm’, it can often be difficult to find the motivation and we appreciate some days may be more challenging than others. With that in mind, the team have put together some of our top tips for working from home.

  1. Ellis Tolan, Paralegal in the Court of Protection Costs Team “I find maintaining a routine really helpful! I tend to plan my routine out the night before and include timings for different tasks during the day starting my plan from my alarm going off to going to bed. This helps me be super productive. For example, at 10:30am I will have a coffee break and a snack. I incorporate my work tasks into my routine to ensure I complete work in the necessary time frame.”
  • Bridie Sanderson, Paralegal in the Court of Protection Costs Team  “Definitely having a tidy work-space! Tidy space, tidy mind! I make sure that I eat my meals away from my desk and always clear away afterwards. Likewise, when I have finished some work, I will clear the files away neatly. This helps me focus on one thing and stops me diverting off to clean up.”
  • Robert Patterson, Associate in the Litigation Costs Team “For me, going for a walk before work helps focus my mind. It stimulates communication and assists with a routine. The fresh-air helps clear my head of any work from the day before and gives me a clear start to the day.”
  • Ellie Howard-Taylor, Paralegal in the Court of Protection Costs Team  “I find that having a clear distinction between workspace and personal space is really important. I have a designated space for my work and ensure I try not to work out of this space as best as possible. That way, I am able to concentrate fully and break away from it too.”
  • Brian Ferry, Associate in the Court of Protection Costs Team  “For me, having a good workspace helps me focus and get work done. It is important to choose a workspace which is clean, spacious and tidy. This helps you become organised with your day-to-day work.”

As we are now a large team with 25 people, it’s highly important to keep in touch with each other and to check in with one another on a regular basis. With this in mind, we have arranged video calls with the whole team to give us a chance to talk about work and see each other, just as if we were in the office. Once a week we have a social call too, which allows us all to stay connected.

Hopefully our top tips can help you get to grips with working from home. For any further queries, please contact Ellie Howard-Taylor on ellie.howard-taylor@clarionsolicitors.com.

Instructing a Draftsman – what we need

Court of Protection solicitors rely upon Court Assessment for their cashflow, so it is important that the assessment process is completed speedily. Follow these tips on what to send to your Draftsman to keep your turnaround times as low as possible.

Joshua Sidding is a Paralegal in the Clarion Costs Department. You can contact him on 0113 222 3245 or by email to Joshua.Sidding@clarionsolicitors.com.

Best Practice for file keeping in the Court of Protection

File keeping can have a big impact on the assessment of a Deputy’s file by the Senior Courts Costs Office (SCCO). Stephanie Kaye looks at 5 key points about file keeping in the Court of Protection and how to maximise costs recovery.

Stephanie Kaye is a Senior Associate in the Clarion Costs Department, and heads the Court of Protection Costs team. You can contact her on 0113 336 3402 or by email at stephanie.kaye@clarionsolicitors.com. 

COVID-19 – Court of Protection

The latest guidance from the government on how to respond to COVID-19 will clearly have an impact on the operation of all Courts in every jurisdiction. It is not realistic to assume that it will be business as usual in any jurisdiction, but it is of vital importance that the administration of justice does not grind to a halt. The global position of COVID-19 is changing on a daily basis. Following this guidance, it is said that there is likely to be an increase in remote hearings as an alternative to visiting the Court itself.

What the guidance says

Mr Justice Hayden, the Vice President of the Court of Protection, has issued two sets of guidance considering the operational situation of the Court of Protection and suggesting practical solutions to some current issues arising as a result of Covid-19:
• Visits to P by Judges and Legal Advisers – published on 13 March 2020
• Additional Guidance for Judges and practitioners arising from Covid-19 – published on 18 March 2020.

First Skype Hearing in the Court of Protection

An entire trial is being conducted over Skype to ensure the legal system continues through the uncertain times of COVID-19 Coronavirus. The Lord Chief Justice provided a statement outlining that “In both the civil and family Courts, there could be the possible move to telephone and video hearings to tackle the current COVID-19 outbreak. Any legal impediments will be dealt with”.

Visits to P

On Tuesday 17 March 2020, Mr Justice Hayden, Vice President of the Court of Protection, issued guidance on visits to P. The guidance provides that “visits should only be made to P where that is assessed as absolutely necessary”. Further, “alternative arrangements should always be considered first, such as telephone, FaceTime and Skype conferencing”. In addition, “Visits to care homes are to be strongly discouraged”. The guidance has been widely published, with the assistance of the Judicial Office, ad has been made available both to the Court of Protection Bar Association and the Court of Protection Practitioners Association.

Attendance at Court

This Court is charged with responsibility for a cohort of people who are in the eye of the storm. In order to properly protect them, there will be a number of issues which will require urgent resolution and in circumstances where a range of P’s fundamental rights and freedoms risk being compromised. In light of the updated government advice from PHE, it is likely that, for the foreseeable future, some hearings will need to be adjourned or to take place remotely.

• Hearings with time estimates of 2 hours or less will be conducted by telephone. The applicant should make the necessary arrangements as set out in the COPGN5;
• Hearings with time estimate of more than 2 hours will, in principle, proceed unless and until further guidance or specific application in the case. This will be decided by the judge hearing the case, by way of a case-by-case judgement;
• It is likely that there will be an increase in the number of hearings being conducted remotely either in whole or in part.
• Where hearings are to be conducted by telephone or by skype, the court listings will be published in advance as usual and any updated guidance will be made public.

Common Questions relating to the Court of Protection:

Q) How should practitioners proceed in respect of documents which require a signature by the Deputy, when they are in self isolation?
A) Until further notice, the Court of Protection can accept electronic signatures. Alternatively, where documents are submitted vis email, a photo of the Deputy’s signature could be attached.

Q) The Mental Capacity Act 2005 and Court of Protection require P to be personally notified on various matters. How can this be substituted in circumstances, for example when P is in lockdown?
A) Arrangements could be made by the applicant by way of an application for notification “by a duly appointed person by an applicant”, (Rule 7.2(1(c)) such as, care home staff. Alternatively, a COP9 application may be appropriate.

Q) Can capacity assessments be undertaken by way of a video, when P is happy to do so and can be seen alone?
A) The assessor will need to make clear the basis of the assessment, whether such evidence is sufficient would be determined on a day-to-day basis. There would need to be careful consideration given to P being adequately supported. Consideration is essential and needs to be addressed in the best interests of P.

Q) Will the Court accept electronic bundles?
A) Currently the Court do not have the computer software to accept any electronic bundles. The Court are able to accept documentation by email. It would be extremely helpful if documents could be scanned separately, as large bundles would slow the system down.

Q) In relation to the property and financial affairs appointment of a Professional Deputy, who has filed a COP4, would it be possible to issue an emergency interim Order to enable financial management work to be undertaken pending the Court’s determination of appointment on a long-term basis?
A) Interim orders of short duration would indeed be possible, but the Court would still need to be satisfied for the purposes of section 48 MCA that there is “reason to believe” that P lacks capacity, and the range of authorities will be more limited. If applicants really are not able to meet the usual requirements by other means, it would be helpful if they specifically identify any issues which really need to be addressed on an interim basis.

The key messages to be taken from the current situation are:

• Hearings of less than 2 hours estimate will proceed by telephone, to be arranged by the applicant and hearings of a longer period will proceed, subject to any application in the particular case. This approach will be reviewed frequently.
• All practitioners must consider the range of options open by use of Skype, telephone conferencing etc.
• There should be an invigorated determination to move forward at directions hearings by agreement wherever possible, but without compromising the interests of the client. Where this is not possible, the parties should seek a telephone or Skype hearing.
• The pressure on Court staff is barely sustainable. The guidance emphasises that, however committed and creative the judges and lawyers may be, the Court process relies very heavily on the availability of a very small team of administrative support.
• The Court is presently only able to use Skype in limited circumstances, but this is being considered further. Separate practical guidance will be issued shortly for use of Skype/Business Skype in the Court where possible.

This is clearly a fast-moving situation and the guidance will be reviewed as circumstances develop. Justice Hayden plans to provide regular updates which we will circulate as soon as they are issued.

For further information or guidance regarding this situation, please contact Ellie Howard-Taylor.