Tag: Court of Protection

The current SCCO delays and how to maximise your cash flow

Ellie Howard-TaylorLeave a comment

What are the delays at the SCCO?

By now, we are all aware of the SCCO delays. With the most recent notice from the SCCO stating “The Costs Officers are currently being assigned bills of costs for which supporting papers were received around the end of October 2022.”

It further goes onto say “whilst bills pre-dating the end of October 2022 are likely to have been assessed, they may not necessarily have reached the dispatch stage yet. The Admin Team are currently sending out assessed bills returned to them by the Costs Officers during the 4th week of August 2023.”

Later on in the notice, it refers to new e-filings. The notice states “e-filings that have been submitted, but not yet accepted or rejected, we are currently working on new bill filings submitted around the 4th week of June 2023 and certificates submitted during the 4th week of August 2022.”

The delays at the SCCO are yet to significantly drop but you can expect to wait 13 months for your bill to be assessed, 2 months for a filing to be accepted (or rejected) and 2 weeks for a FCC to be issued.

The SCCO have asked people not to chase them for an update where their query relates to a bill/filing within these time frames. Obviously any delays greater than stated above, we recommend getting in touch directly with the SCCO.

How can I increase my cash flow?

Given these significant delays a lot of firms are having to wait 12 months or more to bill their own clients for work done almost 2 years ago, which is not ideal.

Practice Direction Part 19B refers to fixed costs in the Court of Protection. It specifically outlines in relation to payment on account and states “Where professional deputies elect for detailed assessment of annual management charges, they may take payments on account for the first three quarters of the year, which are proportionate and reasonable taking into account the size of the estate and the functions they have performed. Interim quarterly bills must not exceed 25% of the estimated annual management charges – that is up to 75% for the whole year.

Interim bills of account must not be submitted to the SCCO. At the end of the annual management year, the deputy must submit their annual bill to the SCCO for detailed assessment and adjust the final total due to reflect payments on account already received.”

We would always encourage firms to take these interim payments throughout the year up to the 75% maximum.

In relation to applications you may take payment on account up to 75% of their estimated costs, reasonable and proportionate taking into account the size of the state. Any payments taken must be included in the first account to Public Guardian.

Fixed Costs

In addition to the interim payments, firms can also take fixed costs for certain work carried out throughout the management year.

In line with the Practice Direction, the revised fixed fees for the Court of Protection, effective from 1 December 2017 states:

 Fixed Fee (plus VAT)
Preparation of the Deputyship Report£265.00
Preparation of the basic HMRC income tax return£250.00  
Preparation of the complex HMRC income tax return£600.00

How can you speed up the process further?  

Given the delays, we recommend you are continuously reviewing their matters for any upcoming order anniversaries. This means that you are able to instruct your Costs Draftsman to prepare the bill quicker, which in turn will mean that your bill of costs is sent to the SCCO sooner.

In addition to this, before a bill is filed with the SCCO we recommend you ensure their e-bundle is in the correct format for the SCCO or ensure their paper file is sent to the SCCO as soon as it is accepted to ensure no further unnecessary delays.

With the introduction of the new E-bill in November 2022, we should start to see an improvement in the delays at the SCCO.

If you would like further assistance on any of the information outlined above, or have any general queries please get in touch at ellie.howard-taylor@clarionsolicitors.com. Alternatively, please check out our WordPress blog site where you can find all of the up to date information on Court of Protection costs.

Update from the SCCO on the COP-E Bill

maidiedeightonLeave a comment

Please see below an update released by the SCCO on the extension to the cut-off period to accepting version 1 of the COP-E Bill.

Following the publication of COP-E Bill version 2.0, a minor error was detected in the filtering functions on the summary sheets and print detail sheet where information from the ‘example data’ COP-E Bill was still visible in the filter dropdowns. The SCCO have advised that this does not affect the workability of the previously published Version 2. The SCCO will continue to accept any bills where the earlier copy of Version 2 was used.

The cut-off date for when Version 1 will no longer be accepted has been extended to 6th November 2023. From this date, only V2.0 and V2.1 of the COP-E Bill will be accepted.

Any version 1 electronic bills must be submitted prior to 6 November 2023. The SCCO have confirmed that only V2.0 and V2.1 of the COP-E Bill will be accepted after the extension date.

Impact for You

The changes outlined in the update are minimal and they are more for the attention of the costs draftsman when preparing E-Bills. The team at Clarion are aware of all of these changes and these will all be implemented going forwards.

The main changes that you should be aware of are outlined below:

  • Front Sheet – there is now a box to include the DX address of the firm. This can be added in if applicable to you, however if you do not have a DX address, this can be left blank.
  • Bill Detail – The activity name for Letters/Emails out on Tab 6 has been amended to be grouped together.
  • Activity Summary – Tab 8 shows a collective summary of how much work has been done by each fee earner grade. 
  • Certification – Tab 11 now shows two titles which are ‘Pre-Assessment Certificate’ and ‘Post-Assessment Certificate’. Please note that the pre-assessment certificate should be completed prior to filing and the post assessment certificate is only to be completed when applying for the Final Costs Certificate.

The version of the bill can be seen in cell A1 on Tab 1 of the bill.  At Clarion, we are now producing V2 of the bill in anticipation of the new deadline, so any bills received from us will have V.2 in this cell.  

It is essential that bills follow the template and guidance notes in force at the time, as any which do not will be rejected. We have ensured that all updates have been carried out and so all of our bills prepared will be prepared under the new format.

How to access the approved template?

The updated copy of the template (Version2.1) is now available on the Judiciary website.

Electronic bills in Court of Protection cases – Pilot in the Senior Courts Costs Office

You can find out more about our services here or you can contact Maidie Deighton at Maidie.Deighton@clarionsolicitors.com for further information.

Costs of attending pre-inquest review can be recoverable

Bethany CollingsLeave a comment

The judgment of Costs Judge James Briley & Ors v Leicester Partnership NHS Trust & Ors [2023] EWHC 1470 (SCCO) provides further insight into the recoverability of costs associated with a Coroner’s Inquest as part of the costs of a subsequent civil claim. Although it is usually accepted that such costs are recoverable in principle, it is not uncommon for paying parties to attempt to limit the extent of claims for costs. One area which is often targeted are costs in respect of pre-inquest review hearings, which can be deemed to be ‘housekeeping tasks’.

The claim related to a young woman who died whilst under the Defendant’s care. The deceased had a substantial history of mental health issues as well as Asperger’s Syndrome and a diagnosis of emotional unstable personality disorder. The deceased also had a history of self-harm and suicide attempts and had been admitted to various mental health units throughout her lifetime. The deceased passed away on 28 December 2016, having been found on her bedroom floor having ligatured with her clothing. The cause of death was an un-survivable hypoxic brain injury.

Following the deceased’s death there was a serious incident investigation which identified a number of concerns. Thereafter there was a further investigation and a future inquest. The deceased’s representatives subsequently brought claims against the Defendant for damages. The civil claims concluded before the inquest took place, however there were two pre-inquest reviews which addressed issues of expert evidence, disclosure, and witness evidence before the damages claim was settled in the sum of £65,000.

In the subsequent detailed assessment of costs, one of the issues between the parties was the extent to which the costs associated with the inquest were recoverable from the Defendant. In particular, the Defendant took issue with the costs of attending the pre-inquest review hearings, which amounted to a total of £14,770.67, including Counsel’s fees, Solicitors costs and disbursements.

The Defendant objected to all costs associated with the pre-inquest reviews largely on grounds that they denied that the costs incurred were of use in the civil claim. This was based on the submission that full admissions of liability had been made and the Defendant had apologised at the time of the deceased’s death. They also suggested that a pre-inquest review was largely ‘housekeeping’ and they relied on the decision in Amanda Helen Lynch (Representative of the Estate of Colette Lynch) and Others v (1) Chief Constable of Warwickshire Police (2) Warwickshire County Council and (3) Warwickshire NHS Trust [14 November 2014], which is an example of a Costs Judge disallowing the costs of a pre-inquest review.

In rejecting the Defendant’s arguments, the Costs Judge confirmed the importance of finding out what caused the death in the first place was a significant factor. It was also held that the fact that the deceased’s representatives had gone on to secure a meaningful apology and a commitment to learn lessons from the death were as important as the financial value of the damages recovered.

As regards the Defendant’s suggestion that the costs were of no use in the civil claim, the Costs Judge found that the participation in the pre-inquest reviews shed light on the treatment received by the deceased, which assisted in considering the non-negligence aspects of the civil claim. In addition, it was found that representation at the pre-inquest reviews helped prevent the Coroner from being influenced by the Defendant’s representatives which may have prevented key documents and facts coming to light. The costs of attending the pre-inquest reviews were therefore allowed in principle.

Bethany Collings is a Paralegal in the Costs and Litigation Funding team and can be contacted at bethany.collings@clarionsolicitors.com or on 0777 951949.

Failure to explain costs budget overspend prevents costs recovery from client

Robert PattersonLeave a comment

The recent case of JXC v NIS [2023] EWHC 1000 (SCCO) (21 April 2023) is an example of a solicitor who had successfully concluded a claim of the utmost severity, but went on to encounter difficulties in securing payment from their client of costs which could either not be claimed from the Defendant or were not recovered from the Defendant.

In this case the solicitor represented a 19-year-old Royal Marines Commando, who sustained catastrophic head injuries when he fell 20 feet from an assault course, which had no safety netting installed. The claim, naturally enough, took a long time to conclude; the CFA was entered into in August 2013 and the award of damages, which had a total capitalised value of £14,000,000, was not approved until March 2021. At the conclusion of the claim, the solicitor presented the Defendant with a bill of costs in the sum of £1,300,488.44 and went on to secure a negotiated settlement amounting to £1,050,000. Subsequently the solicitor sought payment of the shortfall, which had been limited to £212,974.69.

The Court was therefore principally concerned with the nature of information provided to the client’s litigation friend as to base costs recovery from the Defendant and the costs budget.

Although the solicitor had informed the litigation friend that not all of their costs would be recovered and had indicated on 6 occasions between 2017 and 2021 that there would be a shortfall (even going as far as to quantify the shortfall at £245,000 in January 2021), the solicitor had not advised the litigation friend on anything to do with the Court approved costs budget. The client’s budget was first set by the Court on 27 January 2015 and was updated twice more in July 2018 and again on 22 June 2020. The solicitor went on to incur costs in excess of the approved budget which were calculated at £204,759.17.

The solicitor conceded that she had not asked the litigation friend to approve any of the costs budgets, had not given any specific advice to the litigation friend in respect of any budget overspend and had not advised on any corrective action that could be taken. It was nevertheless argued on her behalf that the litigation friend was aware that there would be a shortfall and that the shortfall would be approximately £245,000, which was higher than the claimed shortfall in any event. In other words, the advice given was sufficient to enable the litigation friend to make informed decisions notwithstanding the lack of specific advice on the costs budget.

The Court did not agree. In any solicitor/own client assessment, the solicitor is afforded a degree of protection by the presumptions in CPR rule 46.9(3)(a) and (b) that costs are presumed to be reasonably incurred and reasonable in amount if they were expressly or impliedly approved by the client. The Court found that the client had not been aware of the limits imposed by the costs management order, they could not have expressly or impliedly approved the expenditure. Accordingly, the solicitor was not entitled to rely on the presumptions in CPR rule 46.9(3)(a) and (b). Furthermore, the Court concluded that a budget overspend was not of itself unusual in nature for the purposes of CPR rule 46.9(3)(c), however the scale of the overspend was found to be unusual in amount.

As a consequence of the above, the budget overspend was considered to be unreasonably incurred and unreasonable in amount with the result that the solicitor could not recover any shortfall from the client because the budget overspend exceeded the total claimed shortfall.

In this case the Court was carrying out a detailed assessment under CPR rule 46.4(2) of costs payable to a protected party’s solicitor out of money belonging to the protected party. However, as such assessments involve consideration of CPR rules 46.9(3) and (4), the issues considered in this case should be of interest to any party involved in an assessment under the Solicitors Act 1974. The case also demonstrates the importance of giving appropriate advice at all stages of the costs management process.

For further information, please contact Robert Patterson, who is a Senior Associate in Clarion’s Costs and Litigation Funding Department and can be contacted at robert.patterson@clarionsolicitors.com.

The SCCO Guide 2023: Key Points for COP Practitioners

Ella WilkinsonLeave a comment

The Senior Courts Costs Office have recently released their 2023 guide, and within this Section 27 specifically deals with Court of Protection cases. Please find below a summary of the main points raised.

Reference to Fixed Costs:

The guide references the fixed costs available to practitioners, which can be found under Practice Direction 19B Court of Protection Rules (2017). The Court Order in place will state whether fixed costs apply, or whether the Deputy is entitled to a detailed assessment of their charges. Deputies have the option of electing to take fixed costs instead of proceeding with detailed assessment if deemed appropriate in the case. Further details on the fixed costs available can be found at: https://clarionlegalcosts.com/2022/01/11/strongwhat-fixed-costs-can-be-taken-within-court-of-protection-cases-strong/  

Process of Assessment:

Where P is alive and continues to lack capacity to manage their property and affairs, then the Deputy is unable to simply agree their costs. Where P is subject to an ongoing Order in the Court of Protection and it is ordered that the Deputy’s costs are payable out of the estate of P, then a detailed assessment will be required. However, there are some exceptions where a Deputy is available to agree their costs without the need for assessment, such as in agreeing their outstanding costs with a trustee or administrator where P has passed away, or in agreeing their outstanding costs with P if they have regained capacity and are no longer subject to an Order in the Court of Protection.

To proceed with a detailed assessment, the Deputy is required to lodge with the SCCO:

  • A request for detailed assessment via form N258B (suitable for the majority of cases where the fees are payable out of a fund)
  • A copy of their bill of costs
  • The document giving the right to detailed assessment (Order)
  • Copies of all Orders made by the Court in relation to the costs to be assessed
  • Copies of any Counsel’s fee notes or expert fees claimed within the bill
  • Written evidence of any other disbursements claimed that exceed £500.00
  • A statement signed by the receiving party providing their name, address for service, reference and telephone number
  • A statement including a postal address of any person having a financial interest in the outcome of the assessment, including confirmation of whether this person is a child or a Protected Party
  • Relevant fee payable (currently £87.00)
  • Copies of the OPG102/OPG105 for the applicable year where the assessment relates to general management of P’s property and financial affairs

As a general rule, bills of costs with profit costs of less than £100,000.00 will typically be dealt with by a Cost Officer, with bills in excess of this or more complex in nature tending to be dealt with by a Costs Judge.

Format of bills:

As has been the case since 1 January 2020, all Court of Protection matters are to be e-filed using the CE-File system.

From November 2022 to March 2023, a successful pilot scheme ran regarding the use of the e-bill for Court of Protection cases. E-bills can continue to be filed with the SCCO, however the older style paper bills can also still be prepared and submitted at this time. For general management bills, the year covered within the bill should also be stated at the start, and all bills should include the title of the matter, name and address of the firm, contact number and the matter reference.

For bills with profit costs of under £3,000.00 excluding VAT and disbursements, the Deputy can elect for a short form bill of costs to be prepared for assessment.

Hourly rates:

For work done up until 31 December 2017, the Costs Officers will continue to apply the 2010 Guideline Hourly Rates when assessing bills, unless exceptional circumstances apply.

Further to the decision in PLK and Others (2020) and the rates considerations undertaken, the SCCO have clarified that the judgment does not serve to disapply the indemnity principle in that the practitioner is able to bill at higher rates than provided for within their retainer/client care paperwork. If the rates stated with a retainer are in line with the 2010 Guideline Hourly Rates, then the Deputy is unable to claim and recover any higher rates until this has been updated. If a retainer is silent as to rates or there isn’t a retainer in place, then the Costs Officers will take the approach of applying the 2010 Guideline Hourly Rates up until 30 September 2021, and the 2021 Guideline Hourly Rates thereafter.

In the eventuality that a retainer provides for the 2010 Guideline Hourly Rates alone or for a claim in line with the judgment in PLK and Others, then the Deputy is unable to claim higher rates until this paperwork is updated to facilitate a claim for the 2021 Guideline Hourly Rates. The SCCO have reiterated that it is the responsibility of practitioners to ensure that their paperwork is kept up-to-date, in order for them to keep benefitting from any rate increases.

Authority to assess costs:

The SCCO have confirmed that the Costs Officers will treat the costs of a deputyship application as ending on the date of issue of the Order, which it is noted may be some time after the actual date of the Order. Therefore, any costs incurred after the issuing of the Order will be treated as falling within the first period of general management.

When a Deputy then lodges their bill of costs for the initial management period following their appointment, they should provide a copy of the Order authorising the assessment of their costs. However, the SCCO have advised that they keep records of Orders, and as such that the Deputy is not required to continue to submit a copy in filings for subsequent management years.

In addition, where the Deputy has the option of either taking fixed costs or opting for detailed assessment and chooses to have their costs assessed, then it is good practice to confirm within the narrative of the bill that they have not taken fixed costs for the work undertaken.

Options post assessment:

If the Deputy is not content with the outcome of the assessment and disagrees with reductions made, then they have the option to contact the Costs Officer within 14 days of receiving the provisional assessment to request an informal review of the bill. If the Deputy continues to be dissatisfied after the Costs Officer’s response, then they can progress the matter and request that the SCCO fix a date for an oral hearing before a Costs Judge.

Where a Deputy wishes to accept the provisional assessment then the bill summary requires completion and submission, along with certifying the relevant section of the bill of costs. The Final Costs Certificate will thereafter be issued by the SCCO.

Welfare work:

The general rule with regards to health and welfare work is that there will be no Order as to the costs of proceedings, unlike for costs incurred in relation to property and financial affairs which will generally include an Order for costs to be paid by P or charged to their estate following assessment. If proceedings concern a mix of the two, then the SCCO will as best as possible apportion costs between respective issues.

Costs of sale or purchase of property:

The assessment of costs for these matters generally will take place at the end of a transaction, unless the Court directs otherwise. Unless a sale is completed by trustees, then the fixed rates set out under Practice Direction 19B will apply.  

Post-death costs:

An Order or Direction that costs incurred during the lifetime of P are to be paid out of the estate can be made up to six years after their death. Costs up until the date of the death of P are covered under the authority given in the Deputyship Order, however if these cannot be agreed with the personal representatives, then the outstanding charges can also be assessed under the existing Deputyship Order.

Where P dies whilst an assessment is pending, the Deputy should inform the SCCO in order to suspend the assessment of costs incurred after the date of death until a final direction is obtained, which the Deputy is required to apply for from the Court. Once costs have been assessed, the Deputy will be required to serve a copy of the bill on the appointed personal representatives, or alternatively can seek to agree their outstanding charges with the personal representatives instead of opting for the assessment process.

Payments on account:

Deputies are able to take payments on account, known as interim bills, for the first, second and third quarters of the year in respect of annual management charges, taking into account the size of the estate and functions performed and ensuring that their charges are proportionate and reasonable with regards to the same. Interim bills are to not exceed 25% of the estimated annual charge each quarter, and should not exceed 75% across the management year, as set out under Practice Direction 19B.

In summary, the Court of Protection section of the SCCO Guide for 2023 provides clarification as to key information for professional Deputies with regards to the assessment process and the recovery of their costs for work undertaken on P’s behalf, and is a useful reference tool in this regard for practitioners.  

Ella Wilkinson is an Associate in the Costs and Litigation Funding team at Clarion, and can be contacted for further information at ella.wilkinson@clarionsolicitors.com

You can find out more about our services here or you can contact the team at costs.support@clarionsolicitors.com.

Can you charge interest on Deputyship costs?

Stephanie KayeLeave a comment

It is commonly questioned about whether or not interest is payable on legal fees incurred by a professional Deputy in a Court of Protection case. Interest on unpaid legal costs is governed by the Judgments Act 1838 and Section 74 of the County Courts Act 1984. It is stated that the rate applicable which a receiving party can reasonably be charging interest at is 8% on any unpaid legal costs owed by the paying party. Interest will not run on any payment of costs made on account, therefore if interim payments have been taken, interest will not accrue on those sums.

In Thomas v Bunn [1991], it was held that where a defendant is ordered to pay ‘damages to be assessed’, interest on the damages only ran from the date of the judgment or order assessing the damages payable and not from the date of the order establishing liability. As a result and applying that same logic, it’s widely accepted that interest will run in COP cases but only from the date of the Final Costs Certificate as this is the time that the amount payable is known. If the costs have not been assessed and no Final Costs Certificate has been made, interest cannot accrue.

Practically, it is an additional statutory entitlement so is in addition to the invoices already rendered, but not vatable. The party must be notified that interest is accruing.

Many firms take the view that it is not appropriate to charge interest on legal fees in COP cases where still acting as Deputy, as it would not be deemed in P’s best interests. That said, there are circumstances whereby the Deputy may expect not to receive payment for some time and therefore charging interest may be necessary, for example, pending the sale of a property to release cash assets. It is for the Deputy and the Deputy’s firm to decide whether to charge interest on the legal fees.

If you have any questions, please contact Stephanie Kaye at stephanie.kaye@clarionsolicitors.com

Guideline Hourly Rates are the starting point not the finishing point

Robert PattersonLeave a comment

Arguments concerning solicitors hourly rates have always been a central issue in the assessment of costs, regardless of whether there is a detailed assessment or a summary assessment. Those arguments can be particularly important in cases where the rates claimed exceed the guideline hourly rates. Indeed, those who represent paying parties will deploy numerous arguments to achieve reductions, but one argument that is becoming increasingly common is the suggestion that an hourly rate in excess of guidelines should not be awarded unless a ‘clear and compelling justification’ has been given.

This particular line of argument derives from the case of Samsung Electronics Co Ltd & Ors v LG Display Co Ltd & Anor [2022] EWCA Civ 466. In that case the court was faced with a summary assessment involving hourly rates ranging from £801.40 to £1,131.75 for a Grade A and £443.27 to £704 per hour for a Grade C. The justification provided for those rates was that it is almost always the case the rates will exceed guidelines in competition litigation. Rates in excess of guidelines were not allowed and Males, LJ that:

“[…] If a rate in excess of the guideline rate is to be charged to the paying party, a clear and compelling justification must be provided. It is not enough to say that the case is a commercial case, or a competition case, or that it has an international element, unless there is something about these factors in the case in question which justifies exceeding the guideline rate.”

Males LJ made a similar finding in Athena Capital Fund SICAV-FIS SCA & Ors v Secretariat of State for the Holy See [2022] EWCA Civ 1061 when faced with rates well in excess of the guidelines.

Although the above decisions are frequently relied on, the point made by Males LJ may not be applicable in all cases. This is because in both Samsung and Athena, the court was dealing with a summary assessment rather than a detailed assessment and the two types of assessment are conceptually different. That difference was recently explained Master Rowley in Various Claimants v News Group Newspapers Ltd [2023] EWHC 827 (SCCO):

“70. I also accept the argument that the GHR may be a useful starting point in a detailed assessment as well as in a summary assessment. I do not, however, consider that the guidance given by Males LJ regarding the need for a “clear and compelling justification” for exceeding the GHR extends with any great force to this particular situation.

71. The GHR are provided predominantly to assist judges who do not specialise in costs cases to deal with a summary assessment of costs when faced with the successful party’s summary assessment schedule and competing arguments from the advocates.

72. The relevance to the GHR being a starting point in detailed assessments is no more than a reflection of the scarcity of any other starting point. Expense of time calculations or other potential starting points, as is demonstrated here, are invariably absent. But a starting point by its very name does not suggest it is the finishing point and that is particularly so where the court has the opportunity for the parties to address it in detail in respect of the CPR 44.4 factors.”

The Master went on to allow hourly rates in excess of guidelines. Accordingly, the decision in Samsung does not represent an additional test for receiving parties to overcome and detailed submissions in respect of the eight pillars of wisdom in CPR rule 44.4 are likely to be more effective in securing hourly rates in excess of guidelines.

Robert Patterson is a Senior Associate in Clarion’s Costs and Litigation Funding Team, and can be contacted at robert.patterson@clarionsolicitors.com.

What you need to know about reductions to COP assessments

Lydia MarshallLeave a comment

At Clarion, we deal with over 2,000 COP bills of costs per year and we monitor reductions upon assessment. Every case is different, but you do not need to accept the reductions made to your bill of costs if these are excessive or unreasonable alternatively, you can request a reassessment if appropriate to do so. We recognise the hard work that COP practitioners put into their matters and are passionate about working with our clients to help them recover fair and reasonable costs. Based on our experience, we have identified reductions which we think should be on your radar.

Reductions to the Document Schedule

It is common for time spent preparing documents to be reduced or disallowed where the Costs Officer considers it to be excessive, but it may be necessary to challenge these reductions. If you can provide reasonable justification as to the time spent, the necessity of the task at hand and the grade of fee earner undertaking the task, then it can be beneficial to provide more information to the Costs Officer and request that the reduction is reconsidered. Reductions which we have seen take a rising in recent assessments include disallowing time spent reviewing invoices and incoming correspondence, time spent conducting file reviews and time spent reconciling bank statements therefore, this is something you may see largely when receiving your assessment back from the SCCO.

Contact with Internal Teams

It is not uncommon for the Deputy to require support from another area of expertise in a management period or application. Examples could include the Conveyancing Team in respect of property matters, or the Employment Team regarding the directly employed care staff.  The contact with internal teams is commonly reduced as ‘inter-fee earner communication’, however this contact is often essential in progressing the matter. If an external team were to be instructed, the time would likely be much more costly, therefore the instruction of the internal team can often be in the Protected Party’s best interests. It can be beneficial to advise the Costs Officer of the situation and the necessity of the internal teams’ assistance, to allow them to reconsider reductions appropriately.

Lack of Evidence

Whereby the Costs Officer strikes out time due to the ‘lack of evidence’, ‘no file note’ or simply that the entry is ‘vague’. This should be challenged by providing the relevant file notes to allow the Costs Officer to decide whether the time was reasonable in context of the work completed. Evidence for all work done should be on file, but if something is missed, this can be provided retrospectively which allows the Costs Officer to reconsider the time they disallowed.

Reductions to Contact with the Protected Party/Family/Friends

A common reduction is excessive contact with the Protected Party, their family or their friends where a general reduction under the Trudy Samler decision may be applied.  A high level of contact may be necessary for a number of reasons. The Protected Party might call the fee earner very regularly, a family member may act as the main point of contact, or if there is ongoing Litigation, a family member/friend may be acting as Litigation Friend. If there are reasons behind the high levels of  contact, they should be set out to the Costs Officer to justify it and show that the time spent was proportionate to the matter.

Two Fee Earners in Attendance

It is not uncommon for two fee earners to attend a meeting however, it is unlikely that the Costs Officer will allow time for both fee earners unless under exceptional circumstances. There are some circumstances where we would deem the time claimed for both fee earners to be reasonable for example, if the other party were violent, two fee earners may be required for safety reasons, if the other party had made false allegations against the Deputy, it may be essential for a second fee earner to attend or if the party spoke a different language, it may be necessary for a bilingual fee earner to attend the meeting in order to translate. In the right case, with the provision of evidence to support the necessity of both fee earners in attendance, this reduction could be challenged.

Blended Hourly Rates

Where a higher grade fee earner has undertaken a large portion of work within the bill, a blended hourly rate may be applied to allow for sufficient delegation. There are many complex matters involved with managing the affairs of a Protected Party. Some examples of particularly complex matters required during a management period may be the sale and/or purchase of a property, investigation into misconduct of a previous attorney or high tensions with the involvement of the Protected Party’s family. Under complex matters, it may be necessary to utilise the expertise of a higher grade fee to limit the overall costs therefore, it could be beneficial to provide evidence as to the complexities at hand to allow the Costs Officer to reconsider the expertise which was required.

We are happy to advise any professional Deputy who is unhappy with the outcome of their assessment and continue to work with law firms nationally to help them recover fair and reasonable costs. Please contact Lydia for more information at lydia.marshall@clarionsolicitors.com

Update from SCCO on COP assessment delays

Lydia MarshallLeave a comment

Please see below an update notice released by the SCCO, providing a further update on the current turnaround for COP assessments.

In summary, the Costs Officers are currently assessing bills received around the beginning of August, and the Admin Team are working on returning bills that have been assessed, and are currently up to those in the 4th week of April.

With regards to e-filing, new filings submitted in the 4th week of March are currently being dealt with.

Notice-to-COP-Customers-02.05.2023Download

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

Civil Justice Council Report on Costs and the Impact on Court of Protection Costs

Laura SugarmanLeave a comment

Yesterday, the Civil Justice Council publishes their costs consultation responses and recommendations: https://www.judiciary.uk/civil-justice-council-costs-review-final-report/

Four main areas were considered; costs budgeting, guideline hourly rates, pre-action and digitisation and consequences of the extension of Fixed Recoverable Costs, with guideline hourly rates being the main area that had a potential to impact Court of Protection costs.

With respect to Guideline Hourly Rates, the majority of respondents found that the Guideline Hourly Rates had a useful role both as a starting point for summary and detailed assessment and indicate to the market generally the rates that would be considered reasonable by the Courts.

Almost all respondents believed that the Guideline Hourly Rates should be frequently updated as to ensure they serve their commercial purpose. However, views were mixed as to the frequency of which they were updated.

Abandoning the Guideline Hourly Rates was considered, however this was largely disagreed with by the respondents, with an argument that it would lead to uncertainty and cause difficulties for judges.

Various changes were considered, particularly as many respondents applying Guideline Hourly Rates outside of London noted that these were set considerably lower than the London hourly rates. A strong view was set that guideline hourly rates for London and elsewhere should not be different. Another suggestion was that the bands should reflect the complexity of the work as opposed to the location where the work was carried out.

It was recommended that the Guideline Hourly Rates be retained and in the short term, measures should be taken to create a new band for complex, high value and commercial work regardless of the location where the work was carried out. Also recommended was that Counsel’s fees should be assessed by reference to a guideline hourly rate. Further, when considering a departure from the Guideline Hourly Rates, the test being applied should be clearly stated.

Longer term recommendations included retaining the rates for the next five years, with a view to carrying out a Detailed Review at the end of the five years. Also recommended was a working group to ensure a satisfactory methodology can be identified and put in practice. Index linking was recommended to be carried out annually, in order to remove the need to carry out a form of detailed review on a regular basis. This will reflect the position of the market.

Overall, the immediate impact of the review is minimal to Court of Protection costs, however the Civil Justice Council will now consider how these recommendations are taken forward.

If you have any questions, please contact Laura Gillin at Laura.Gillin@clarionsolicitors.com