Tag: hourlyrates

Final report on guideline hourly rates published – what is the impact on Court of Protection practitioners?

Ella WilkinsonLeave a comment

On Friday, the Civil Justice Council published their final report on guideline hourly rates (GHR).

Key recommendations made within the final report include:

  • That the Guideline Hourly Rates proposed in the Interim Report should be implemented in full
  • That National Band 3 should be abolished
  • That the counties of Kent, East Sussex, West Sussex and Surrey should become National Band 1 areas
  • That existing National Band 1 counties and other identified Band 1 centres will remain within Band 1
  • That all other areas will fall or remain within National Band 2

In respect of Court of Protection costs specifically, the report quotes Master Whalan in the decision of PLK & Others, where he concluded that ‘ultimately I am not satisfied that the evidence supports Mr Wilcock’s contention that COP firms have experienced a significant increase in hard and soft overheads’. It was also noted that ‘in general, however, COP assessments can be conducted by Costs Officers utilising the GHR as the reasonable hourly rate. The issue as to the appropriate status or grade of fee earner for the work in question will always be a matter for discretion of Costs Officers and/or Costs Judges’. When considering the PLK rates, the decision was made that ‘the GHR rates (if approved) are the rates to be used, not the PLK rates’.

The impact of this for Court of Protection practitioners is that the rates stated in the PLK and Others judgment dated 30 September 2020, as set out below, will no longer apply to costs to be assessed by the SCCO, and that the new GHR, if approved, will instead be applicable.

What are the proposed guideline rates, and how do these compare to the PLK rates?

PLK Rates

 Grade AGrade BGrade CGrade D
London 1£490£335£271£165
London 2£380£290£235£151
London 3£275-£320£206-£275£198£145
National 1£260£230£193£142
National 2£241£212£175£133

Proposed GHR

 Grade AGrade BGrade CGrade D
London 1£512£348£270£186
London 2£373£289£244£139
London 3£282£232 £185£129
National 1£261£218£178£126
National 2£255£218£177 £126

One key observation is that the proposed rates for National Band 1 are lower than the PLK Rates, for Grade B, Grade C and Grade D fee earners.

The overall position from the final report is that there was no compelling evidence found that additional attention should be given to Court of Protection work, and as such that said work should be subject to the same rates, the new GHR, if approved, as other areas.

You can access the full final report here: Civil Justice Council publishes final report on guideline hourly rates | Courts and Tribunals Judiciary

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

PLK and Others: What we know now…

Ella WilkinsonLeave a comment

On 30 September 2020, a judgment was handed down by Master Whalan following a hearing in the matter of PLK and Others on 26 May 2020.

This case was brought by a number of professional Deputies, to bring the issue as to the guideline hourly rates not being altered for 10 years, despite factors such as inflation and an ever increasing workload raising questions as to the sustainability of Court of Protection work for many practitioners. The Costs Team at Clarion prepared the four bills of costs concerned, in which rates with an uplift of approximately 31% of the guideline rates were claimed, to reflect RPI inflation.

The outcome of this hearing was that ‘if the hourly rates claimed fall within approximately 120% of the 2010 GHR, then they should be regarded as being prima facie reasonable’. Master Whalan summarised that the new rates could be applied to all outstanding assessments, irrespective of the year in which the work was undertaken.

Since then, the SCCO have released further guidance by way of a Practise Note. The main points to note from this are:

  • The uplifted rates can be applied only to work undertaken in 2018 or after, and that the judgment does not disapply the indemnity principle. As a result, where a retainer letter limits the hourly rates for conducting fee earners specifically to the 2010 guideline rates, the Costs Officers will not allow firms to claim for the uplifted rates.
  • Deputies cannot withdraw or amend bills already submitted without further authority from the Court.
  • Deputies can make an informal request for reassessment, however that if this is done for the sole purpose of seeking the uplifted rates, that the request for reconsideration will likely be unsuccessful
  • Deputies should take into account their terms of business and OPG105 estimate when considering applying the new rates, as the Costs Officer’s will keep these under consideration when conducting assessments

Since the judgment was handed down, we have applied the uplifted rates to the majority of bills prepared on behalf of our clients, however have recently received a number of assessments back from the SCCO, whereby the rates claimed have been reduced back to the 2010 guideline rates on each occasion. The Costs Officer has stated on these bills that ‘the Deputy under the indemnity principle could not expect to apply new rates to old work’, and that ‘the Solicitor cannot expect to apply new rates to old work that they did not expect to achieve when doing the work’.

The comments of the SCCO are extremely frustrating for deputies who are not breaching the indemnity principle when claiming the higher rates. We recommend that if your costs are limited on assessment to the 2010 rates for retrospective claims for costs, that you submit your retainer letter and terms of business for the attention of the Costs Officer to support that you are entitled to recover rates in excess of the old 2010 rates.

The view of the Costs Officers is contradictory to the judgment and deputies should work with their costs provider to try to recover the higher rates where there is no breach of the indemnity principle. 

Ella Wilkinson is a Legal Apprentice in the Costs & Litigation Funding Team at Clarion. You can contact her on 0113 288 5693, or by email to ella.wilkinson@clarionsolicitors.com