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There are many historic cases which are regularly referred to in COP assessments which are arguably outdated and no longer applicable.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.

 

 

 

 

Court of Protection Case Law Summary

This article focuses on the main case law which impacts upon the costs within the Court of Protection. It is apparent that Costs Officers frequently refer to one or more of these cases when conducting provisional assessments and therefore knowledge of the case law is beneficial:

Garylee Grimsley – December 1998

Two or More Fee Earners at One Attendance – Disallowed in accordance with R –v- Legal Aid Board Ex Parte Bruce (1991) which stated:

“Solicitors are not to be expected to carry knowledge of all the law in their heads… if the problem is outside the scope of their experience they will wish to discuss it with others who are more qualified… But knowledge of the law, however acquired or recalled, is their stock in trade… In so far as expense is involved in adding to this stock in trade, it is an overhead expense and not something that can be charged to the client”

Inter Fee Earner Communications – Master O’Hare directed that claims in respect of discussion between a solicitor, Deputy and his junior employees were disallowed under the SCCO Practice Direction No.2 of 1992 (Para 1.8). Memorandums passed between fee earners were also disallowed as they amounted to inter-office liaison which had not added anything to the value of the legal services provided.

Tina Jayne Cloughton – November 1999

Delegation – Master O’Hare stated that a Professional Deputy should delegate suitable tasks to colleagues on the basis that the delegation is reasonable and will save costs rather than increase them. However, Master O’Hare directed that the Deputy must be careful not to increase his/her claim for costs by duplicating work done by colleagues.

Jamie Walker – November 2002

Arranging Payments – Master O’Hare reduced/disallowed time for making payments/settling invoices as this was considered a non-fee earner task. Such time was defined as:

  • Checking that the invoice was incorrect;
  • Checking the file to ensure an invoice had not already been paid;
  • Checking that sufficient funds were in the account;
  • Preparing a cheque and getting it signed;
  • Preparing the appropriate letter;
  • Checking the receipt and filing it

Incoming Correspondence – Disallowed as the time spent on incoming correspondence was included within the time spent preparing the response. Master O’Hare applied the following provision for time spent perusing incoming correspondence:

“Routine letter out and routine telephone calls will in general be allowed on a unit basis of 6 minutes each… The unit charge for letters out will include perusing and considering the relevant letters in and no separate charge should be made for incoming letters”

Leighanne Radcliffe – December 2004

Inter Fee Earner Communications – Costs Officer Sainthouse applied Master O’Hare’s decisions that had been made In the matter of Garylee Grimsley whereby communications between fee earners were disallowed as they had not added anything to the value of the legal services provided.

Enclosure Letters – 6 minute claims for letters enclosing invoices were reduced to 3 minutes for payment of routine invoices. Costs Officer Sainthouse referred to Master O’Hare’s decision which had been made In the matter of Jamie Walker in that the time spent checking the invoice, arranging payment and preparing the appropriate letter/cheque was non-fee earner work.

Michael Ashton – July 2006

Reduced Hourly Rates – Master O’Hare dictated that Court of Protection work was ‘less taxing’ than other areas of law such as litigation. It was therefore ruled that hourly rates for Court of Protection work should be less than the Guideline Hourly Rates set by the SCCO for litigation work.

Louise Smith & Others – October 2007

Guideline Hourly Rates – Master Haworth ruled that Court of Protection work should be allowed in accordance with the SCCO Guideline Hourly Rates. The bands within the SCCO Guideline Hourly Rates are defined as:

  • Solicitors with over 4 years post qualification experience, including at least 8 years litigation experience;
  • Solicitors and Legal Executives with over 4 years post qualification experience, including at least 4 years litigation experience;
  • Other Solicitors and Legal Executives and Fee Earners of equivalent experience;
  • Trainee Solicitors, Paralegals and Fee Earners of equivalent experience.
  • Provisions for the recovery of rates above the Guideline Hourly Rates were also made:

“An hourly rate in excess of the guideline figures may be appropriate for Grade A fee earners in complex litigation… including the value of the litigation, the level of complexity the urgency or importance of the matter… would justify a significantly higher rate…”

It was also directed that:

“Unqualified clerks who are fee earners of equivalent experience may be entitled to similar rates… Clerks without the equivalent experience will be treated as being in the bottom grade of fee earner… whether or not a fee earner has equivalent experience is ultimately a matter for the discretion of the Court”

Louise Smith & Others is the leading case in respect of Guideline Hourly Rates.

Yazid Yahiaoui – January 2014

Blended Hourly Rates – Master Haworth saw no reason to depart from his judgment stated In the matter of Louise Smith & Others however the application of “blended rates” may be suitable. Master Haworth directed:

“…where work is being carried out either as a team or by an individual that spans work that would normally be dealt with by a Grade B, C or D fee earner, a blended or enhanced rate may be appropriate…”

If you have any questions or queries in relation to this blog please contact Julianne Brown (julianne.brown@clarionsolicitors.com or 0113 336 3320) or the Clarion Costs Team on 0113 246 0622.