Court of Protection Costs – What happens after the death of P?

Upon the death of the Protected Party, the Deputy’s authority under the First General Order seizes with immediate effect. Once the matter is transferred to the Executors of the Estate, the Deputy can agree their costs directly without a need for assessment, if possible, which will generally save the Protected Party money overall, without the need for the assessment process. If this is not possible, it may be necessary to apply to the Court for the costs to be assessed.

The interim work and the costs of the Deputy bringing the matter to a conclusion following the death of the Protected Party have been questioned over the years, as there has been very little guidance on this issue. In many cases, there is reasonable and necessary work involved in preparing the case for the Executor to thereafter deal with the Estate, however, what is a reasonable sum for this work?

Following correspondence with the Senior Courts Costs Office (SCCO), the following change has been made to the assessment procedure with immediate effect. The SCCO may now allow ‘reasonable costs’ (post death of the Protected Party) in order that the Deputy can finalise his/her involvement in the matter. The SCCO have indicated that such costs should not be expected to exceed £1,500.00 +VAT.

As a result, where it appears that the post-death profit costs exceed £1,500.00 +VAT, the Deputy will require the authority to assess that part of the Bill of Costs. Costs below this amount are likely to be deemed reasonable on assessment but are, of course, subject to the usual assessment process and will be allowed based on what was reasonable, necessary and proportionate in the circumstances.

If you have any queries relating to post-death costs in Court of Protection cases, please do not hesitate to contact Stephanie Kaye.

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The Application for permission to Deprive the Protected Party (a minor) of his Liberty in circumstances where there was no secure accommodation available.

This was an application by a Local Authority in relation to a young boy; the Protected Party, who is now 13. He previously lived with his grandmother under a Special Guardianship Order, but became the subject of a full care Order in December 2015. The Protected Party had displayed a desperate history and a catalogue of very seriously uncontrolled behaviour, damaging to both himself and others. As a result, he had been placed in no less than six different residential settings. Each setting ultimately broke down, sometimes very rapidly, as the staff there were simply unable to manage his behaviour and keep him safe.

The Local Authority would have wished by June 2017 to place the Protected Party in an approved secure accommodation placement. Such placements are very scarce and they were unable to find one. So, they hoped to place him in a unit which was not an approved secure accommodation at X. Their plan was, however, that within X he should, if necessary, be subject to considerable restraint, including physical restraint, in order to keep him safe and prevent him from absconding, as he had done on occasions in the past.

Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as Secure Accommodation Orders. Such Orders may be made and, indeed, frequently are made by Courts, including Courts composed of lay magistrates. It is not necessary to apply to the High Court for a Secure Accommodation Order, however, as no approved secure accommodation was available, the Local Authority required the authorisation of a Court for the inevitable Deprivation of Liberty of the Protected Party. Mr Justice Holman expressed his concern over the way in which Applications of this sort were handled, saying that “the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children. This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division.” The Judge Ordered that the child now be joined as a party to these proceedings and Cafcass must allocate a Guardian to act on his behalf. A further hearing was ordered to be fixed in one month. It was stated that the Guardian must file and serve an interim report shortly before that hearing. Further, in view of the gravity of the subject matter and the age of the child, the Judge Ordered that he must be enabled to attend the hearing if he expresses a wish to do so unless the Guardian thought it would be damaging to the health, wellbeing or emotional stability of the child to do so. In his view it was very important that in these situations, which in plain language involve a child being ‘locked up’, the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so.

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

Deprivation of Liberty Proceedings on behalf of a minor [2017] EWHC 2458 (Fam)

The Local Authority made an Application for permission to deprive the Protected Party (a minor) where there was no secure accommodation available.

The Protected Party was a 13 year old child and had a background of very serious uncontrollable behaviour which had resulted in damage to himself and others. As a result, he had been placed in over six different accommodations for his own and others’ safety. There were a number of occasions where the staff were unable to manage his behaviour or keep themselves and the Protected Party safe.

The Local Authority had repeatedly expressed their wishes to place the Protected Party in an approved secure placement, however these were rare and they were unable to find a suitable home. As a result, they had hoped it would have been possible to place him in a unit which was not deemed an approved secure accommodation. A plan was put in place that meant the Protected Party would stay at the accommodation and if necessary, be subject to considerable restraint, including physical restraint, solely for the purpose of keeping him safe.

Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as Secure Accommodation Orders. Such Orders may be made and, indeed, frequently are made by Courts. It is not necessary to apply to the High Court for a Secure Accommodation Order, however, as there was no approved secure accommodation available, the Local Authority required the authorisation from a Court for the Deprivation of Liberty that the Protected Party would be subjected to.

Mr Justice Holman delivered his concern over the way in which applications of this kind were handled, saying that “the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children. This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division.”

The Judge ordered that the child now be joined as a party to these proceedings and a guardian must be appointed to act on his behalf. A further hearing was fixed for a months time, as the Judge was concerned the Protected Party had been deprived of his liberty for the past 3 months. The Judge advised further “in view of the gravity of the subject matter and the age of the child, I propose to order that he must be enabled to attend the hearing if he expresses a wish to do so unless the guardian states that in his opinion it would be damaging to the health, wellbeing or emotional stability of the child to do so. In my view it is very important that ordinarily in these situations, which in plain language involve a child being ‘locked up’, the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so. But subject to that exception, if a child of sufficient age, which includes a child of this or any older age, wishes to attend a hearing of this kind, then in my view he must be enabled to do so.”

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

Costs Budgeting in the Court of Protection and the Family Courts

Many areas of law have escaped the automatic Costs Budgeting regime, for instance:

  • Fast Track cases where fixed costs do not apply;
  • Part 8 claims;
  • Insolvency Act claims; and
  • Part 7 claims which exceed £10 million, to name a few.

However the Court is able to order that Costs Management can apply to any case (Civil Procedure Rule (CPR) 3.12 (1); Paragraph 2, PD 3E to CPR Part 3). The case of CIP Properties v Galliford Try Infrastructures Ltd [2014] EWHC 3546 highlights the relevance of Costs Management for high value cases and confirms that the costs of a case where the claim for damages exceeded £10 million could indeed be cost managed.

Although Costs Management can apply to any CPR case, there continues to be many areas of law that it does not apply to.  It is becoming evident that the Costs Management regime is paving the way in how costs are managed by the Court and that other Courts who are not exposed to automatic Costs Budgeting are understanding those benefits and are expressing their views.  The recent judgments of Peter Jackson J in A & B (Court of Protection: Delay & Costs) [2014] EWCOP 8 and of Mr Justice Mostyn in J v J [2014] EWHC 3654 (Fam) and V v V [2011] EWHC 1190 (Fam) all discuss the need for Costs Management.

Peter Jackson J expressed his opinion that costs of £9,000.00 per month were “extravagant” and “there is a direct correlation between delay and expense”. He further commented that “the court and the parties have a duty to ensure that the costs are reasonable”.

The costs claimed in the family proceedings were described by Mr Justice Mostyn as “grotesque” and “absurd”.

Peter Jackson J requested that the President of the Court of Protection review the management of Court of Protection cases and “believes that time has come to introduce the same disciplines in the Court of Protection as now apply in the Family Court”.

If adopted by the Courts properly, Costs Management can successfully ensure that costs remain proportionate.  It is essential in both the Court of Protection and the Family Courts that cases are managed properly and costs do not escalate as a result of poor management.

If you have any questions or queries in relation to this blog please contact Sue Fox (sue.fox@clarionsolicitors.com and 0113 3363389) or the Clarion Costs Team on 0113 2460622.