Tag: #courtofprotection

No Costs Recovery in Failed Deputyship Case Where P Had Capacity

maidiedeightonLeave a comment

The Court of Protection has determined that it should not make a costs order against a Protected Party (P) who was the subject of a failed application by a professional Deputy to be appointed to handle his affairs.

This decision offers some important guidance on costs in Deputyship Applications, particularly when an application ultimately fails because the person concerned is found to have capacity.

Background

  • A professional Deputy applied to be appointed as property and affairs Deputy for a vulnerable adult. However, a section 49 report later confirmed that P did, in fact, have capacity.
  • P sustained frontal lobe damage more than 20 years ago following an assault, which has a mild impact on his executive functioning, compounded by excessive alcohol use. The Deputy made a COP1 application seeking appointment as a professional deputy for P after a referral by City of York Council, who believed P lacked capacity to manage his affairs. But a later medical report found he had the capacity to manage his property and affairs.
  • The Deputy appealed against the decision made by the District Judge who dismissed the application and made no order for costs, meaning the Deputy could not recover any of their expenses.

The Appeal

Harris J allowed the appeal in part, finding that the District Judge had misapplied the law on costs. Harris J found that the District Judge had made a mistake on costs by failing to apply the general rule that in property and affairs Deputyship applications costs shall be paid by P or charged to P’s estate (rule 19.2, Court of Protection Rules 2017) (SI 2017/1035)) (COP 2017). The District Judge had also failed to consider the grounds for departing from this with reference to the factors set out in rule 19.5 of the COP 2017.

Reassessing the Costs Position

  • Harris J reconsidered the matter from the start. While confirming that the general rule should be the initial benchmark, the Judge stressed that it is not absolute. There is a strong public interest in bringing appropriate applications before the Court of Protection, but that alone does not guarantee cost recovery for applicants.
  • Harris J concluded that as a matter of natural justice, “it may appear perverse that P should pay the costs of the Deputy – who is a complete stranger to him – for an application he did not invite, always opposed, had no choice but to respond to, and ultimately was successful in defending.

In reaching the decision, the judge focused on two key factors:

1.    P having no choice but to respond to litigation he did not invite but being successful in defending the application and, as a vulnerable adult, having no way to protect himself against any costs exposure.

2.    The professional Deputy choosing to bring and pursue the application and being in a position to assess litigation risks.

Outcome

  • Balancing these elements, the court concluded it was fair and just to depart from the general rule.
  • Harris J concluded that the application to be appointed as Deputy ultimately failed and it was the responsibility of the professional Deputy to mitigate any costs exposure.
  • Where an application has been made by a professional Deputy on referral from a local authority, the court suggested that the local authority could consider assuming the costs burden through a contractual arrangement with the Deputy, instead of imposing the burden on vulnerable adults.
  • This costs decision shows that courts are prepared to depart from the general rule on costs where there is good reason to do so.

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

Fixed Costs and Remuneration of Professional Deputies

Laura SugarmanLeave a comment

On 18th June 2025, the Office of the Public Guardian issued new guidance in relation to fixed costs and remuneration of professional Deputies. The purpose of the guidance is to set out the general principles regarding fixed costs and the Public Guardian’s position on issues relating to fixed costs.

As you will be aware, rule 19.13 of the Court of Protection Rules confirms that Deputies can be remunerated for costs they incur when performing their duties as Deputy. The Court may order that the Deputy is allowed to take fixed costs. These are outlined in Practice Direction 19B (PD19B), which was recently updated, on 1st April 2024. Whereby the management period ended before 1st April 2024, the rates set out in the previous PD19B would apply, however if the period covered by the fixed costs ends on or after 1 April 2024, the rates outlined in the latest version of the Practice Direction apply. Generally speaking, a management period would run on an annual basis, however this guidance confirms that if the period is less than a year (for example if there is a change in Deputy or P passes away) the fixed costs claimed should be apportioned accordingly.

It is important to ensure that if you want to have your costs assessed but the Court Order only allows for fixed costs, the Deputy will not be allowed to take any costs higher than fixed costs as per the case of The London Borough of Enfield v Matrix Deputies Ltd & Anor. Our advice would be to apply to the Court of Protection to have the costs clause varied to allow for the costs to be assessed in these circumstances.

The guidance also reiterated the definition of net assets as per the case of Penntrust Ltd v West Berkshire Council & Anor. This case confirms that net assets is the total assets minus total liabilities. This includes any property owned by P, regardless of if they are currently residing in the same.

Whereby P has net assets of less than £20,300, the Deputy will not be permitted to have their costs assessed. Instead, they can take an annual management fee not exceeding 4.5% of P’s assets. The guidance also confirms that if there is a pending settlement which would take P’s assets significantly above £20,300, the Deputy should apply to the Court of Protection to seek authority to delay taking costs until the settlement funds have been received. This is a move away from previous guidance which has stated that the Deputy can only have costs assessed if P has assets above the threshold on the anniversary of the Court Order.

Further guidance has now been issued in relation to tax returns. Fixed costs can be taken for the completion of a basic tax return and complex tax return. It has been difficult to determine what would account for a complex tax return and therefore this guidance is very welcomed. The guidance states that:

‘PD 19B defines a basic tax return to cover cases where P’s income is derived primarily from bank or NS&I interest and taxable benefits, discretionary trust or estate income. A complex tax return may be defined as one which also includes income form more complex investments including stocks, shares and bonds, rental property, business income and foreign property. Public authority deputies may charge up to £89 for a basic tax return as set out at paragraph 18 of Practice Direction 19B to include bank or NS&I interest and taxable benefits and may charge an amount not exceeding £89. They may charge P for the completion of more complex tax returns as a specialist service P would be expected to play for if they retained capacity.’

Guidance has also been provided in the event of P’s death. The Public Guardian recommends that the Deputy agrees any costs with the personal representative of the administrator of P’s estate. Further, the guidance states that the Deputy is not permitted to take final costs after P’s death, if the estate has not yet been settled.

If you have any questions, please get in touch with Laura Sugarman for further information – laura.sugarman@clarionsolicitors.com.

What scope is there for the recovery of litigation related costs as financial Deputy?

Ella WilkinsonLeave a comment

There is an unavoidable overlap between deputyship costs and litigation costs where a Deputy is appointed to manage P’s property and financial affairs whilst a claim remains ongoing concerning P. This has historically been and will continue to be somewhat of a grey area. The main distinction is working out whether the time spent is to be recovered under the Deputy’s bill of costs for general management or under the litigation claim.

Costs Judge James recently offered some valuable insight on this issue, and confirmed that the SCCO take the approach that “where the Deputy is being asked to provide information and/or schedules and/or documentation to support an interim payment application in ongoing litigation, these are not general management charges. They have been brought about by the actions of the defendant to the claim and the costs should rightfully be laid at the defendant’s door and not billed to P’s estate”. The same goes for where the Deputy is asked to prepare a witness statement for use in the litigation claim, with the key takeaway being that this time (with the work ultimately being generated by the defendant) should be claimed and recovered under the litigation rather than coming at a cost to P’s estate. It is not a black and white answer as to whether you can or cannot recover this time, but a question of where the work is best placed for recovery and payment.

It is inevitable in a Court of Protection deputyship matter where there is an ongoing claim that there will be some level of maintained contact throughout the management year regarding the general progression of the claim given the financial Deputy’s obligations and responsibilities. We continue to recommend that this periodical contact be included in general management bills for assessment. However, please note that where there is a significant level of contact between the fee earners and the litigator, the SCCO may take the stance that it would be more appropriate for the time incurred to be pursued in the litigation bill of costs and recovered from the defendant.

It is recommended that Deputies also consider the cases of In re Gibsons Settlement Trusts [1981] and Hadley v Pryzbylo [2024] in considering where work is best placed to be claimed and recovered. In re Gibsons Settlement Trusts [1981] applied a three strands of reasoning test, which was affirmed in the later case of Hadley v Pryzbylo [2024]. Another interesting observation made in Hadley v Pryzbylo which highlights further the lack of certainty in approach in this regard was that “as a matter of common sense, it would be unusual to rule that any generic category of cost was irrecoverable in principle; by the same token, it would be wrong to assume that, even if the generic category is recoverable, every item that made up that category was automatically recoverable”. This further demonstrates that costs in this area do not follow a one size fits all or black and white approach.

The case of ACC and Others [2020] also touches on litigation costs incurred by Deputies and what work can be done under the general management authority for steps taken in contemplation of litigation. My colleague Leah has recently prepared a helpful summary of the main points from this judgment, which you can read here: https://clarionlegalcosts.com/2024/10/15/acc-others-a-useful-recap/

If you have any specific queries as Deputy in relation to the recovery of your work in ‘litigation support’ work, please do not hesitate to get in touch with us to discuss this.

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

MA v A Local Authority & Ors [2024] EWCOP 48 (T2)

hawamayetLeave a comment

This matter concerned a legal Judgment following an appeal by MA, a Protected Party, against decision by District Judge Simpson. The original decision determined that it was in the best interests of MA and her husband, AA, both of whom have Dementia and lack capacity to make decisions about their residence, care, and contact with others, to have no form of contact with each other.

The couple, married for over 60 years, are placed in separate care facilities due to their differing care needs and are deprived of their liberty under the Mental Capacity Act 2005. The appeal was opposed by AA and the public bodies responsible for their care.

The appeal raised eight grounds, focusing on the weight given to the past and present wishes and feelings of MA and AA, their mutual beliefs and values, and the benefits and burdens of potential contact or relocation. The Appellant argued that the Judge failed to adequately consider these factors, particularly the lifelong values and beliefs associated with their marriage. The appeal also challenged the Judge’s analysis under Article 8 of the European Convention on Human Rights, which concerns the right to respect for private and family life.

The Court granted permission to appeal on the first seven grounds, acknowledging arguable issues with the balancing exercise of the Judge’s decision. However, the appeal was ultimately dismissed on all grounds.

The Judgment emphasized that the Trial Judge’s decision was thorough and based on the overwhelming evidence presented, which indicated that contact between MA and AA was not in their best interests due to the distress it caused, the Court found that the decision was proportionate and necessary, with provisions for regular review as the conditions of both parties evolve. The Judgment also addressed procedural aspects, such as the consolidation of separate applications and the refusal of permission to appeal on the eighth ground related to Article 8 rights.

The Court upheld the original decision, affirming that the separation and lack of contact were lawful and in the best interests of both parties, with ongoing reviews to accommodate any changes in their conditions.

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

CD, Re (Treatment: Haemodialysis) [2024]

maidiedeightonLeave a comment

Application for declarations that it was not in CD’s best interests to have new haemodialysis catheter fitted and that he should instead receive palliative care.

CD is a 66 year old originally from Bangladesh and has end-stage renal disease and other conditions. Problems arose with his catheter and attempts to insert a long-term tunnelled catheter were unsuccessful due to his agitation, leading him to repeatedly try to pull it out. While there was consensus that the temporary catheter needed to be removed, the NHS Trust proposed that CD should receive palliative care instead.

Professional evidence indicated that without dialysis, CD might have only two weeks to live, but with treatment, he could potentially survive for an additional three to six months.

However, Judge Poole ultimately rejected this proposal. He recognized the complexities of the situation but emphasized the importance of preserving life.

He states at [29] “The presumption that steps should be taken to preserve life, the family’s views, evidence as to CD’s beliefs and values and his past wishes and feelings, and the evidence of the pleasures that he still derives from interactions with his family and others and from good food, weigh in favour of his undergoing the procedure and continuing with dialysis. I am cautious about finding that it is in his best interests to undergo a procedure the purpose of which he might unknowingly frustrate by pulling out a catheter, but without the insertion of a catheter his life cannot be preserved, and his life, if preserved, will continue to bring him real benefits alongside its burdens. There is no advanced decision to consider but the evidence is that CD is a man who, if he still had capacity, would not want his life to end prematurely unless its burdens became wholly overwhelming.”

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

Was it correct to act against expressly made, documented wishes in attempts to preserve life? The case of Pindo Mulla v Spain (2024).

Stephanie KayeLeave a comment

The case of Pindo Mulla v Spain (2024) involved a decision made by the Grand Chamber of the European Court of Human Rights in relation to conducting medical treatment for Pindo Mulla (PM). PM was a Jehovah’s Witness who had expressly confirmed that she could not accept blood transfusions due to the moral stance outlined with her religious beliefs.

 

PM had been aware of her condition prior to the required surgery and drew up several documents refusing any type of blood transfusion if it was deemed by medical professionals that she required the same. In 2018, she required further emergency surgery at La Paz Hospital in Madrid, at which point medical professionals sought permission from a judge to transfuse her if necessary, whilst being aware that she had “verbally expressed her rejection of all types of treatment”. Permission was given “to treat the patient arriving from Soria, whose identity is unknown for the moment, with the medical or surgical measures necessary to safeguard her life and physical integrity”, and as a result PM was transfused during the procedure. She then attempted to sue in domestic Courts in Spain, but was unsuccessful in her action.

PM proceeded to argue that her objection to the transfusions had been overridden in contravention of Articles 8 and 9 of the European Convention on Human Rights (right to respect for private and family life, and the right to freedom of thought, conscience and religion).

Conclusion:

The Court found that the decision to proceed with the medical treatment, against PM’s wishes, had occurred due to a decision-making process affected by the omission of essential information about the documenting of these wishes. The Court was satisfied that the actions of the medical professionals had been motivated by an overriding concern to ensure that Pindo Mulla was treated effectively, but that overall it was evident that her rights under Articles 8 and 9 of the Convention had in fact been violated, and that the domestic system had not responded appropriately to PM’s complaints regarding the overruling of her documented wishes.

 

Guidance on interim payments within Court of Protection

Casey McGregorLeave a comment

Practice Direction 19B sets out the guidance on the deputy costs and the charging structure. The guidance states that a deputy can receive an interim payment in advance of the assessment for the year, which is proportionate and reasonable. It is noted that the overall level of interim payments received cannot exceed 75% of their estimated costs submitted to the Office of the Public Guardian or the WIP (whichever is lower) within a reporting year.

If you have a situation whereby, the interim payment taken exceeded your estimated costs or the WIP, you will need to credit note and refund this overpayment immediately.

Once the bill is assessed by the SCCO, and a final costs certificate has been issued, the Deputy will be entitled to receive the balance for that year, which would be the difference between the total of interim payments received during the year and the total assessed costs as set out in the final costs certificate.

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

What Fixed Costs can be taken within Court of Protection cases?

Casey McGregorLeave a comment

Practice Direction 19 (b) sets out the fixed costs that may be claimed by solicitors and public authorities acting in Court of Protection proceedings. In line with the Practice Direction, the revised fixed fees for the Court of Protection, effective from 1 December 2017 is as follows:

 Fixed Fee (plus VAT)
Appointment of Financial and Property Deputy£950.00
Appointment of Health and Welfare Deputy£555.00
Appointment of a Trustee£500.00
First General Management Year£1670.00
General Management for the second and subsequent management years£1320.00
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
ConveyancingA value element of 0.15% of the consideration with a minimum sum of £400.00 and a maximum sum of £1,670.0 plus disbursements.
Interim PaymentsUp to 75% of the WIP incurred

If you take the fixed cost available, you forfeit the right to an assessment later down the line. If you have authority for the assessment of costs in your Order and you will exceed the fixed cost amount, we recommend that you opt for assessment instead as it’s very likely that you’ll recover more than the above amount. Despite several hourly rate changes in recent years, fixed costs have not changed, so they remain at a low level which most practitioners do not consider suitable for their cases.

The link to the Practice Direction can be found at: https://www.judiciary.uk/publications/fixed-costs-in-the-court-of-protection/

If you have any questions, please do not hesitate to contact Casey Mcgregor at casey.mcgregor@clarionsolicitors.com

Will COP hearings continue remotely in a post-Covid world?

Stephanie KayeLeave a comment

Following the announcement on the 10 June 2021 from the President of the Family Division, Sir Andrew McFarlane, a two-week rapid consultation on remote, hybrid and in-person hearings within the family and Court of Protection (COP) systems has taken place and ended on 27 June 2021.

This was the third survey looking into the impact on hearings following the change of location and format. Unlike the previous two, this was a shorter survey and focused questions on which parts of working remotely should be retained, any further issues that occurred and what best actions could be taken to avoid these. Following the relaxation of some lockdown rules, this survey also looked at the experience of attending court in person.

The survey was completed by the Nuffield Family Justice Observatory (NFJO), an independent organisation which is committed to improving life for children and families by putting data and evidence at the heart of family justice system. The NFJO has gathered evidence from families with children and all professionals working in the family justice system, including judges, barristers, solicitors, Cafcass workers, court staff and social workers and the findings of this will be available for the President’s Conference in July.

We will report sooner on the topic as soon as more information is available about in-person hearings in the future.

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

Joshua Sidding is a Paralegal in the Court of Protection Team of the Costs and Litigation Funding Department at Clarion Solicitors. You can contact him at Joshua.sidding@clarionsolicitors.com and 0113 222 3245