Proportionality in the Court of Protection

You will have all heard about the ‘Jackson Reforms’, which so far, have not been something that Court of Protection practitioners have had to be too concerned about – until now.

As part of the ‘Jackson Reforms’, a new test of proportionality was introduced. Proportionality now trumps reasonableness and ‘necessity’. Even if a cost was reasonable and was necessary, it can be disallowed on the basis of proportionality. The purpose of this reform was to tackle disproportionate claims for costs.

The case of BNM and MGN Limited (see https://clarionlegalcosts.com/2016/06/10/who-needs-fixed-costs/#more-876) is an interesting case to consider in relation to the new test of proportionality, where a bill of costs was reduced from £167,389.45 to £83,964.80 on the basis of proportionality. This is one of the first cases to really demonstrate the power of CPR 44.3 (2) (‘Jackson test of proportionality’), which states:

Where the amount of costs is to be assessed on the standard basis, the court will –

(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

 (b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

 This ‘Jackson test of proportionality’ is something that has primarily been having an impact on civil and commercial claims for costs, however, we (Court of Protection Costs team at Clarion) are now starting to see the new test being applied to Court of Protection cases.

Under the new test, the Senior Courts Costs Office must assess a bill of costs (line by line) and determine what is reasonable. Thereafter, the new test of proportionality can be applied. The Costs Officer has the power to stand back and ask ‘was this a proportionate sum to incur on this matter taking into account all the factors relating to the case’, and in some instances, the answer can lead to significant further reductions to a Bill of Costs.

Going forward, we believe that this is something that will have an impact on Court of Protection cases. Not only will your costs be assessed based on what was reasonably incurred, but the SCCO can also consider other factors, such as the value of the Protected Party’s estate and other non-monetary influences when considering whether the assessed (reasonable amount) is proportionate.

We considered a recent assessment whereby the Protected Party’s estate was worth approximately £46,000.00. The Deputy submitted a bill of costs totalling £12,200.00. The bill was provisionally assessed at £11,500.00, but was thereafter limited to £9,000.00 due to the issue of proportionality, as a result of the value of the estate.

There is no guidance as to what is proportionate in these cases, however, the Costs Officer has the authority to determine what is proportionate at their own discretion. It will be interesting to see how this is applied going forward and whilst this area is still developing, requests for reviews or appeals may be appropriate. Albeit the financial position of the Protected Party is key, other factors such as the conduct of the Protected Party, the complexity of the matter and any key elements (international and business) may be influential in justifying your claim for costs.

If this is something which you require assistance with, please do not hesitate to contact myself or our team at COPCosts@clarionsolicitors.com.

Revocation of the financial Deputy’s responsibility in a case concerning deprivation of liberty and care arrangements- is this fair?

Temperley Taylor are considering appealing a Court of Protection ruling that revoked the financial Deputy’s responsibility to act on behalf of the Protected Party in a case concerning deprivation of liberty and care arrangements.

In Mrs P v Rochdale Borough Council and NHS North, Central and South Manchester Clinical Commissioning Groups [2016] EWCOP B1, District Judge Ranj Matharu made a judgment stating that the firm was not acting in the Protected Party’s best interests and criticised the “brutal and insensitive” comments made in relation to the Protected Party’s requests.

The background of the case was explained to the court and the court was informed that the Protected Party lacked capacity to make decisions regarding where she resided. Despite her care being fully funded by the local Clinical Commissioning group, the Protected Party had a number of underlying ‘challenging behaviours’  throughout her time in care. The Protected Party had a substantial level of money and therefore it was found that her standard and quality living arrangements could be improved by using those funds.

An application had been made for the Managing Partner of Temperley Taylor to be appointed as Deputy in respect of the Protected Party’s financial and property affairs, an Order was made in March of this year as she had been a “long standing client and the firm held her will”.

A number of requests were made with regards to the reappraisal of the Protected Party’s needs and funds were requested to improve her diet and purchase new clothes. She had made it clear that she had specific dietary requirements and her only enjoyment in life came from the company of her dog, who had been re-homed. “Being in the presence of other dogs made her “face light up” and it was evidential that this improved the quality of life.” The court found that these factors were not addressed following a number of assessments of her care plan.

DJ Matharu highlighted his suspicion and curiosity in relation to the Protected Party’s finances. The Protected Party’s account held a nil balance, when a year previously it was recorded that she had £7,000.00, yet there was little evidence that these funds were provided to purchase more varied food and clothing. DJ Matharu further said that this financial information was “troubling” and an understatement if that.”

The delay in establishing Mrs P’s financial position is inexplicable,’ the judgment stated. ‘In fact, it is entirely unclear on what basis they consider the steps they have taken to be in her interests. Their sole focus should and can only be Mrs P, yet they appear to be working against the litigation friend and not with them.’

Temperley Taylor highlighted their opinion in an email to Switalskis that it “would seem irresponsible in the extreme to suggest that a dogs visits a care home for elderly and frail people”.

Thereafter the Order was revoked, as the Court was satisfied that Temperley Taylor were not acting in the Protected Party’s best interests.

The firm has stated that they are “actively considering an appeal against the judgment.”

If you have any queries or general questions, please do not hesitate to get in touch and we would be more than happy to assist you. Please contact CopCosts@clarionsolicitors.com or call 0113 246 0622.

What are ‘Payroll Rates’ and which tasks are recovered at these rates?

We recently received an assessed bill of costs where the time claimed for work in relation to payroll had been reduced to £95.00 an hour. It seemed that the Costs Officer had allowed ‘Payroll Rates’ as opposed to the hourly rates allowed by the Senior Courts Costs Office (SCCO). On discussion with the Costs Officer, it transpired that solicitors recover the SCCO hourly rates for their professional skills as a Deputy. Where their job entails payroll tasks such as timesheets calculations, wages, national insurance and tax then this will be remunerated at Accountants Clerk’s rates. The Costs Officer advised that Accountants who are appointed as Deputy will often claim between £60.00 and £100.00 per hour rate for payroll related tasks. It was therefore concluded that £95.00 per hour was an appropriate rate for such work undertaken by Deputies.

It seems like ‘Payroll Rates’ are becoming a regular occurrence in Court of Protection bills and therefore it is important to bear these in mind whenever such tasks are undertaken.

If you require any further advice or assistance in relation to your Court of Protection costs, please do not hesitate to contact the Clarion Costs Team on COPCosts@clarionsolicitors.com or 0113 246 0622.

 

Case Management in the Court of Protection

A case management pilot scheme will commence in June 2016. In light of this a pilot Practice Direction has been published in order to allow for practitioners to prepare for the changes ahead.

The Pilot Practice Direction will place an obligation on all applicants to provide improved analysis of any issues at the start of a case which in turn will lead to more vigorous decisions being made against all the issues that could be identified at the earliest opportunity. It is hoped that this will help to encourage cases to be resolved within the early stages and also reduce lengthy hearings in contested cases. The length of the pilot is expected to run for up to 12 months.

The pilot scheme sets out three case management pathways for CoP proceedings:

  1. a Property and Affairs pathway,
  2. a Health and Welfare pathway, and
  3. a hybrid pathway for cases that have elements of both Property and Health.

Please note that there could be possible amendments to the draft before the pilot actually commences in order to take account of any observations made on it or for other reasons.

An interesting point to consider is that the Courts may direct any party to file and serve an estimate of costs pursuant to Practice Direction 3.1 (l) of the case management pilot scheme, supplementing the Court of Protection Rules 2007.

If you require any further information please contact the COP costs team on 0113 246 0622 or email copcosts@clarionsolicitors.com.