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.

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The Perfect Court of Protection Lawyer – Help You Help Yourself

As a result of the SCCO Guideline Hourly Rates, some lawyers find it frustrating that they can only recover limited costs, as opposed to other fields of law, whereby they can recover much higher fees. Furthermore, some think that it is unreasonable that the Costs Officer can thereafter reduce these costs upon assessment. Here at Clarion, we aim to maximise the recovery of your legal costs, to ensure that you recover what you are entitled to.

In order to do so, there are a number of things that we recommend based on our experience. In the matter of Michael Ashton (July 2006) Master O’Hare held that Court of Protection work was ‘less taxing’ than other areas of law, resulting in these hourly rates. Although you may not agree with this statement, this is still one of the leading cases in relation to Court of Protection hourly rates, and thus we must adhere to these guidelines. We advise that you ensure that your hourly rates correspond with the SCCO rates, as this will make certain that your WIP figures are accurate, helping you to raise interim bills.

With regards to the same, it is not impossible to claim higher rates than the guidelines, however, the fee earner must consider the complexity of the matter and whether it was possible to delegate the work carried out. In order to justify higher rates, there must be exceptional circumstances.

Furthermore, ensure that you accurately time record your work. We appreciate that different firms have differing levels of technology available, but this need not be the most complex and time consuming system. If you do have the option to tag your time entries, this will help all parties involved when it comes to the costing of the work. Bulk time recording will cause difficulties so avoid this as much as possible.

It is key to note what you did, why you did it and how long it took you. A file note stating these points will make it clear to the costs officer and you are more likely to recover your costs. Even a handwritten note is better than nothing at all. This is particularly important in relation to time spent on documents- if it took you an hour to complete a form, say so.

Additionally, ensure that your file is in chronological order. This will make it easier to for yourself, as well as the Costs Officer.

Finally, make certain that you are reasonable and proportionate in your approach to the work done. The Protected Party should not have to pay for your first class train tickets, or for an hour of a Partner’s time on the phone to British Gas. A common sense approach should be taken by the fee earner to establish this.

If you would like more information on what time is recoverable from the Court in order to further maximise the remuneration of your work, please do not hesitate to contact us.

If you have any questions or queries in relation to this blog please contact Stephanie Kaye (stephanie.kaye@clarionsolicitors.com and 0113 3363402) or the Clarion Costs Team on 0113 2460622.