Unusual Granting of an Order to Prevent the Protected Party from knowing the full details of his Personal Injury Settlement following an application made by his Professional Deputy.

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

 

 

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Impersonating a Protected Party grounds for imprisonment – Dudley v Hill

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

Various Incapacitated Persons, Re (Appointment of Trust Corporations As Deputies) [2018] EWCOP 3

Where concerns were raised when Trust Corporations apply as a Deputy for the Financial and Property affairs of a Protected Party.

A judgment was issued whereby the courts raised their concerns when considering an application that had been made to appoint a Trust Corporation as a Deputy, for the financial and property affairs of a Protected Party. Judge Hilder informed of the details required for the Court to be satisfied that the corporation is a fit and proper legal person to hold such appointment.

The case involved 36 applicants covering 11 different trust corporations, all of which are connected to solicitor practices.

The proposed Deputy (the Trust Corporation) is a Trust Corporation within the meaning of section 64(1) of the Mental Capacity Act 2005 and can lawfully act as such; and the Trust Corporation will inform the Office of the Public Guardian (OPG) immediately if that ceases to be the case.

The Trust Corporation will comply with the OPG’s published standards for professional deputies.

EITHER:

(i) The Trust Corporation is authorised by the SRA;

OR 

(ii) all the directors of the Trust Corporation are solicitors and it employs no one (save to the extent that it employs a company secretary); and

(iii) the Trust Corporation will retain its associated legal practice to carry out all practical work in relation to the management of the incapacitated person’s property and affairs; and

(iv) the Trust Corporation is covered by the professional indemnity insurance policy of its associated authorised legal practice on the same terms as that practice;

The Trust Corporation will notify the OPG immediately, if there is any change to any of the matters set out in paragraph 3 above.

The Trust Corporation must also ensure that it obtains and maintains insurance cover..

The Trust Corporation will lodge a copy of the insurance policy with the OPG on appointment and will inform the OPG immediately if there is any reduction in the terms or level of the insurance cover.

The note offered some explanations as to why a law firm might chose to create a Trust Corporation, these include:

  1. A Trust Corporation is designed to increase flexibility and improve services for clients. By creating a Trust Corporation, you can streamline the administration of estates and trusts to provide greater flexibility in the day-to-day administration of the files that it handles.”

From the Protected Party’s perspective, the benefits of appointing a Trust Corporation include:

1. Continuity – new trustees are never needed as a Trust Corporation never dies, goes on holiday, gets ill or retires. This can create substantial savings in professional fees: each time an individual trustee retires and a new trustee appointed, a deed needs to be created and the assets of the trust have to be transferred, whereas with a Trust Corporation, the appointment and retirement of directors will not affect the assets within particular trusts.

2. Availability – individual trustees aren’t always available due to holidays and other commitments, but a Trust Corporation will always be available.

3. Professionalism – Trust Corporation signatories will be senior members of the private client department of the firm who deal with trusts and estates every day.”

These identified benefits are procedural or financial. Whilst these are important, they are not the only aspects to consider. It was explained in the judgment that “each case will be different but Deputyships generally also require an appropriate person-to-person interaction with the protected person and often their family. Considered from that perspective, it can be seen that the benefit of continuity accrues also to the law firm – a client is retained for the long term, even if the individuals familiar with the case change firms.

Conclusion

A Trust Corporation can apply to be on the Office of the Public Guardian’s panel of deputies, but there is no ‘panel’ of Trust Corporations which have demonstrated compliance with legal requirements to act. Information necessary to satisfy the Court as to suitability must therefore be ’built into’ the application process itself.

 If you have any queries, please do not hesitate to contact Georgia Clarke (georgia.clarke@clarionsolicitors.com) or the team at COPCosts@clarionsolicitors.com.

 

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.

Philpott – Is it reasonable to claim for updating accounts ledgers?

It is common knowledge that the SCCO refer to certain case law when assessing Bills of Costs in Court of Protection matters. Although the Costs Officers assess your incurred costs using their own discretion as to what is reasonable and proportionate, there are a number of themes which can be identified from the assessments we are seeing. If something stands out in which case law has determined that it cannot be charged to the Protected Party, it will be reduced or disallowed upon assessment.

A more recent case has come to our attention as we have seen the case quoted more recently on provisionally assessed Bills of Costs. In the case of Philpott, the written judgement was not published, however the SCCO were able to share a few comments made by Master Haworth whilst delivering his judgement. Essentially, whereby time has been spent updating the Protected Party’s financial records or schedules of income and expenditure, this has been noted as an ‘office overhead’ in some instances.

During the delivery of his judgement, Master Haworth made the following comments inter alia:-

“It seems to me that the inputting of data into P’s ledger is not fee earning work.  At most it is bookkeeping which, to my mind, is an overhead of a solicitor’s practice.

This work has to be distinguished from for example, reviewing or perusing the data to come to a decision as to what then needs to be done with a P’s funds.  To my mind that may well amount to fee earning work for which the solicitors can charge separately at the appropriate rate. 

I know that I have a number of further appeals on similar lines which may well result in a written judgment from me in due course.  Nonetheless, it may be helpful for you to circulate this memo to the Costs Officers in the interest of consistency in the future.”

 Resultantly, we recommend that this task is delegated appropriately to a Grade D fee earner or non-fee earner where possible.

If you have any queries in respect of the above, please do not hesitate to contact the Costs Team at COPCosts@clarionsolicitors.com