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.
As of today, the pilot begins for voluntary electronic filing at the Senior Courts Costs Office. To request an assessment, the bill of costs, the N258B and the authority to assess are to be forwarded through e-filing. The papers are to be sent as normal in the post/DX for the current time. This process becomes mandatory on 20 January 2020.
This is a big change in costs and particularly regarding COP costs, whereby it was expected that electronic filing would not apply. We have had confirmation from the SCCO that this does apply to COP cases and we recommend that all practitioners begin doing this going forward before the process becomes mandatory.
The portal link can be found here: https://efile.cefile-app.com/login
Information about existing FAQ’s following the E-Filing in other Courts can be found here: https://leedslawsociety.org.uk/wp-content/uploads/2019/04/E-Filing-Frequently-Asked-Questions.pdf
The link to the government website regarding CE-Filing which includes step by step guides can be found here: https://www.gov.uk/guidance/ce-file-system-information-and-support-advice
If you have any queries, please contact Stephanie Kaye on 0113 336 3402 or stephanie.kaye@clarionsolicitors.com
At a glance, the costs of a professional Deputy may seem expensive. However, the level of knowledge and work undertaken by a Deputy justifies these costs, especially in a case where the award was of substantial value. Once broken down, the costs of a Deputy are reasonable and can be justified.
Case summary
The Protected Party is a 24-year old with severe cerebral palsy. He suffered intracranial haemorrhage and brain injury following a traumatic premature birth and during a breech delivery. His litigation friend brought a clinical negligence claim on his behalf, arguing that the Protected Party’s injuries could have been avoided by a caesarean delivery. The Defendant accepted liability as the brain injury could have been avoided.
At the settlement hearing, some heads of loss had been agreed, but the costs of the professional deputy remained in dispute.
All parties accepted that the Protected Party lacked capacity to look after his own financial affairs, and predicted that this would be the case for the remainder of his life time. Therefore, a Professional Deputy was to be appointed; the cost of which continued to be argued.
It was deemed that although the Protected Party’s parents were supportive, it was not appropriate for them to administrate the Protected Party’s financial and property affairs. They had stated that they wanted to work alongside the Deputy, not against them. The Protected Party had some level of understanding and communication, so the Deputy was obliged to liaise directly with him.
What is considered reasonable for Deputyship costs?
For annual management
| Year | Claimant Costs | Defendant Costs | Award |
| 1 | 30,605 plus cost of 2 visits | 14,000 inclusive of 2 visits | 30,000 inclusive of visits |
| 2 | 21,492 plus cost of 2 visits | 9,000 inclusive of 2 visits | 20,000 inclusive of visits |
| 3 | 17,040 plus cost of 1 visit | 8,000 inclusive of 1 visit | 15,000 inclusive of visits |
| 4 | 17,040 plus cost of 1 visit | 8,000 inclusive of 1 visit | 15,000 inclusive of visits |
| 5 onwards | 11,232 plus cost of 1 visit | 7,000 inclusive of 1 visit | 10,000 inclusive of visits |
The parties agreed that for extras such as transfers of Deputies, Wills, co-habitation or pre-nuptial agreements and “crisis payments”, a further £38,160.00 was reasonable.
The Judge allowed a total of £898,993.00.
This judgment can then be compared to the PNBA Facts & Figures 2017/18 (pages 258-288) whereby this outlines what could be classed as reasonable when awarding damages to cover the cost of the claimants Deputyship fees. Please refer to the table below.
| Year and Expected Work to be Undertaken During the Deputyship Management | Estimated Costs |
| Deputyship Application | £6,638 |
| 1st Deputyship Year | £32,570 |
| 2nd Deputyship Year | £23,666 |
| 3rd Deputyship Year | £19,775 |
| Thereafter annual costs of £15,959 x 21.28 | £339,607 |
| Applications for appointment of new Deputy (x2) | £7,588 |
| Statutory Will Application | £14,538 |
| Contingency for crises | £6,360 |
| Preparation of tax returns £600 p.a x 24.28 | £14,568 |
| Winding up – single payment | £1,800 |
|
Total Costs |
£467,110.00 |
Finally, it’s noteworthy that all Deputyship costs are assessed by the Senior Courts Cost Office and the fee earners are regularly limited to the SCCO Guideline Hourly Rates whilst costs are awarded for Deputyship work, this is further scrutinised on assessment based on what is reasonable, proportionate and necessary in the Protected Party’s best interests.
If you have any queries, please do not hesitate to contact Georgia Clarke or the team at COPCosts@clarionsolicitors.com
In the case of CB v Medway Council & Anor (Appeal) [2019] EWCOP, the Official Solicitor appealed against a decision which justified the Protected Party’s Deprivation of Liberty.
The Protected Party was a 91 year old female, who no longer lived at her own property following a fall and persistent urinary tract infections. The Protected Party resided at a care home and was provided with a care package, which ultimately was said to have not worked out. The Protected Party’s litigation friend, the Official Solicitor, made an application to enable the Protected Party to reside at her own property, however, the Judge dismissed this application using her summary power.
The Official Solicitor disagreed with the decision of the Judge and therefore appealed the same. The Official Solicitor argued that the Judge did not abide by her duty to ensure that the Protected Party’s best interests were considered as the Judge had failed to allow the Official Solicitor to gather further evidence to support the argument in relation to the feasibility of the Protected Party returning to live at her property. The Court allowed the appeal as the Protected Party’s Deprivation of Liberty should have been considered and thoroughly explored, rather than the Judge dismissing the application based on speculation and general experience within similar cases.
If you have any queries, please do not hesitate to contact Casey McGregor or the team at COPCosts@clarionsolicitors.com
In the case of Office of the Public Guardian v Stalter [2018] EWCOP 27, an application was made by the Office of the Public Guardian to commit the Protected Party’s partner to prison due to him disclosing information that was in breach of a transparency Order.
The Protected Party had been diagnosed with dementia in March 2016, from October 2016 to January 2018, the Protected Party’s partner, named Mr Stalter, had communicated with a number of different people in a certain way which lead to a breach of the transparency Order. The transparency Order stated that ‘proceedings were not to be published, nor were the identities of other parties to be published, nor was any information tending to identify those individuals as a patient or parties to be published, nor were their addresses or contact details to be published.’ During this communication to various individuals, Mr Stalter advised that the Protected Party was in fact subject to the Court of Protection proceedings and further advised on the individuals that were parties to the proceedings, which included himself. Mr Stalter further disclosed personal details, which was in fact prohibited by the transparency Order, therefore the Protected Party’s partner had breached the Order. The Office of the Public Guardian therefore wished to bring a committal Order.
Mr Stalter was found to be in contempt of Court, however the Court determined that no Order for his committal needed to be made having regard to the fact that he did confirm that he would abide by the Order. The Courts were of the opinion that no punishment would be appropriate for this case due to the fact that Mr Stalter had already suffered as a result of the situation.
If you have any queries, please do not hesitate to contact Casey McGregor or the team at COPCosts@clarionsolicitors.com
In this personal injury case, the judge had to grapple with an unexpected question – should a Deputy, appointed to manage the personal injury payment made to a brain-injured claimant, be allowed to not tell the claimant the exact amount that was awarded to him?
The case of EXB v FDZ
The case of EXB v FDZ (2018) was very unusual in that it involved an application by the Protected Party’s professional Deputy, and his mother as Litigation Friend, to prevent the Protected Party from knowing the full details of his personal injury settlement, which was deemed to be in his best interests.
This was a complex matter, as the Court recognised that withholding such information inadvertently affected the Protected Party’s rights. Judge Foskett explained in his judgement that he had never come across this issue before and he called upon assistance from Ms. Butler-Cole as a ‘friend of the Court’.
The Protected Party
The Protected Party sustained orthopaedic injuries, alongside a severe brain injury following a road traffic accident. The Protected Party was a backseat passenger in a car driven by the First Defendant. The Protected Party was not wearing a seatbelt and his damages were reduced accordingly, following an admission of contributory negligence.
Why was it in the best interests of the Protected Party to withhold settlement info?
The applicants submitted evidence from both themselves and professionals which detailed the reasons as to why it was in the Protected Party’s best interests to withhold the settlement information.
The Protected Party’s neuropsychologist stated that “Such knowledge would translate and impact upon his behaviour”. It was believed that the Protected Party would become fixated by the sum of money, that it would lead to him being extremely vulnerable and placed into a situation where he was likely to be financially exploited. Interestingly, the Protected Party himself expressed to his Deputy and the Court that he would be better off not knowing the sum; however, he also stated that he was conned into making such a statement. Following the accident, the Protected Party was very impulsive, and he often became very anxious when it came to money, struggling to budget and often living beyond his means.
The Judge gave careful consideration to the evidence submitted, as well as reviewing the relevant legislation, such as the Mental Capacity Act 2005 and the UN Convention on the Rights of Persons with Disabilities (CRPD). Following this, the Judge held that the Protected Party lacked the relevant decision-making capacity, finding that it was in the Protected Party’s best interests not to be told the value of the reward. The Judge also considered whether it was within the scope of a normal Deputy Order not to reveal the sum; however, the Deputy argued that it would make the Deputy’s life more difficult if the Protected Party believed that he was personally withholding the information and it was considered more appropriate for the Deputy to state that the Court prevented him from doing so.
Costs of the application
The next issue that arose was in respect of the costs of the application. The Claimant sought the costs of the application to be paid by the Third and Fourth Defendants of the Personal Injury claim, as their tort had necessitated. The Third and Fourth Defendants objected to paying the costs. Their defence stated that “they should not be responsible for the costs because all of the issues between them and the Claimant were concluded by the Settlement which was approved in April 2018” and that this particular issue was a ‘solicitor/own client’ dispute. Within the remit of the initial Personal Injury claim, there was no claim for costs attributable to this issue within the Schedule of Loss and there was also the fear that there may be an “open-ended commitment to pay the costs associated with any repeat applications”.
As the issue had been dealt with under the Court of Protection, it was necessary to apply the Court of Protection costs rules. The general rule being that where the issue concerns financial matters, the costs of all parties are to be borne from the Protected Party’s estate (Rule 19.2). The Court does have a broad discretion to depart from the general rule, if circumstances made a different order more appropriate (Rule 19.5). In this case, the Third and Fourth Defendants had not been made formal parties to the application, but they had been provided with an opportunity to make representations regarding the Costs Order being sought.
Judge Foskett held that the costs were to be borne by the relevant Defendants, as the need to make the application arose directly from their actions following the injury caused to the Protected Party, therefore departing from the general rule.
It will be interesting to see whether there will be any similar applications and what the outcomes will be. The Judge has invited the appropriate bodies to consider these matters and decide whether a consultation on this issue will be required.
This blog was prepared by Danielle Walker who is a Costs Lawyer within the Court of Protection Team. Danielle can be contacted at Danielle.walker@clarionsolicitors.com
Court of Protection orders imprisonment of a Respondent for falsely impersonating the Protected Party and breaching an injunction.
In the case of Dudley Metropolitan Borough Council v Hill (2018), the Court of Protection made an Order for committal to prison after the Respondent was found guilty of impersonating the Protected Party and incurring costs on the Protected Party’s behalf without the authority to do so.
The Court of Protection were concerned for the Protected Party, both in relation to his health and welfare and also his property and financial affairs. There had been a provisional declaration made within the proceedings that the Protected Party lacked capacity. The Protected Party resided in his own home with his support workers, and the Local Authority were heavily involved in the matter.
The Protected Party was an 82-year-old man who suffered from dementia and the Respondent had been impersonating the Protected Party for a significant amount of time. The Respondent was served an injunction which forbid him to directly or indirectly contact the Protected Party or come within 100 meters of his property. The Respondent breached the injunction by attending the Protected Party’s property on 25th November 2017 and in January 2018, the Respondent fraudulently arranged for the installation of BT equipment without the required authority. Furthermore, the Respondent made a large number of telephone calls from the Protected Party’s property, which incurred unnecessary charges and proved that he had entered the Protected Party’s property.
The Respondent was required to attend a hearing, which was to determine whether he had breached the Order for injunction. The Respondent failed to attend the hearing and the Court then found him guilty as a result of the breach of the Order of injunction. The Respondent was sentenced to 4 months imprisonment, to be served concurrently.
If you have any queries, please do not hesitate to contact Casey McGregor or the team at COPCosts@clarionsolicitors.com
