Tag: Practice Direction

New Fixed Costs in COP – what you need to know about PD19B and the changes

Laura SugarmanLeave a comment

This month, it has been announced that there will be an increase to the fixed costs following a revised publication of Practice Direction 19B, applicable from 1st April 2024 for COP practitioners. This is a welcome increase, given that the previous fixed costs were deemed to be outdated, particularly in light of the recent increases to hourly rates as a result of PLK, GHR 2021 and GHR 2024.

The new fixed costs are as follows:

WORK CARRIED OUTPREVIOUS FIXED COSTS ENTITLEMENT (plus VAT)NEW FIXED COSTS ENTITLEMENT (plus VAT)
Application Work9501204 
1St GM year16702116
2nd and subsequent GM years13201672
Deputy Report265 336
Basic Tax Return250 317
Complex Tax return600 Reasonable/ or three quotes (ACC)
ConveyancingMin 400 max 1670 Reasonable /or three quotes (ACC)
Interim paymentsUp to 75% of WIP, raised by way of three quarterly billsUp to 75% WIP for the year or 75% of OPG105 estimate. whatever is lower. 

The increases to most of the fixed costs represents a 26% rise from the previous available figure.

As well as the increase to fixed costs, the threshold for hardship cases has also increased. This was previously £16,000 but this has now increased to £20,300. Therefore, if P has less than £20,300 in assets, the Deputy will be unable to have their costs assessed but instead will be limited to 4.5% of P’s assets.

The changes to interim payments is a welcome shift which will help cash flow for firms, as payments on account are not limited to quarterly, therefore billing monthly may be preferred so long as the OPG105 estimate is in line with the WIP incurred.

This month has also seen an announcement regarding the increase in court fees. Following a consultation, the government has decided to proceed with increases of 10% to 172 of the 202 fees that were proposed in the initial consultation. This will directly impact COP Practitioners. The court fee for requesting a detailed assessment has increased from £87 to £96, the court fee to appeal against a COP costs assessment decision has increased from £70 to £77 and the court fee for a request to set aside a default costs certificate has increased from £65 to £72.

There has also been an increase in court fees for Court of Protection applications. These have increased from £371 to £408. The court fee for appealing has increased from £234 to £257.

It is incredibly important that COP practitioners update their client care paperwork to reflect the new fixed costs if they are sought, in addition to the new court fees.

If you have any questions about any of the above, please feel free to contact Laura Sugarman at Laura.Sugarman@clarionsolicitors.com

Who are the interested parties and who should be served in COP cases?

Casey McGregorLeave a comment

An interested party is anyone with a financial interest in the outcome of the assessment. Rule 47.19 of the CPR enables the court to direct under rule 47.19(3) that the receiving party must serve a copy of the request for assessment and copies of the documents which accompany it, on any person who has a financial interest in the outcome of the assessment.

Practice Direction 47, para (18.2) explains what is or is not a ‘financial interest’. It states ‘A person has a financial interest in the outcome of the assessment if the assessment will or may affect the amount of money or property to which that person is or may become entitled out of the fund. Where an interest in the fund is itself held by a trustee for the benefit of some other person, that trustee will be treated as the person having such a financial interest unless it is not appropriate to do so. ‘Trustee’ includes a personal representative, receiver or any other person acting in a fiduciary capacity’.

The SCCO expect the professional Deputy to determine who such an interested party may be and for the Deputy to take a sensible, pragmatic approach. It may not be appropriate to serve every beneficiary of P’s estate, for example. It is recommended that any interested parties are highlighted for the SCCO’s attention when e-filing your bill of costs.

Sometimes the SCCO will indicate on the assessment that the bill of costs needs to be served on the interested parties, but even where they don’t state that, it is up to the Deputy or Claimant to decide if the bill should be served. There have been instances where a Final Costs Certificate has been obtained and an interested party has come forward asking why they were not served at the time, wishing to challenge the outcome of the assessment. If the SCCO decided that party should have been served, the Claimant may be liable for the costs of that additional process as a result of not following procedure.

The link to the procedure rules can be found at: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-47-procedure-for-detailed-assessment/practice-direction-46-costs-special-cases2#18.1

If you have any questions, please do not hesitate to contact Casey Mcgregor at casey.mcgregor@clarionsolicitors.com

Case Management in the Court of Protection

Stephanie KayeLeave a comment

A case management pilot scheme will commence in June 2016. In light of this a pilot Practice Direction has been published in order to allow for practitioners to prepare for the changes ahead.

The Pilot Practice Direction will place an obligation on all applicants to provide improved analysis of any issues at the start of a case which in turn will lead to more vigorous decisions being made against all the issues that could be identified at the earliest opportunity. It is hoped that this will help to encourage cases to be resolved within the early stages and also reduce lengthy hearings in contested cases. The length of the pilot is expected to run for up to 12 months.

The pilot scheme sets out three case management pathways for CoP proceedings:

  1. a Property and Affairs pathway,
  2. a Health and Welfare pathway, and
  3. a hybrid pathway for cases that have elements of both Property and Health.

Please note that there could be possible amendments to the draft before the pilot actually commences in order to take account of any observations made on it or for other reasons.

An interesting point to consider is that the Courts may direct any party to file and serve an estimate of costs pursuant to Practice Direction 3.1 (l) of the case management pilot scheme, supplementing the Court of Protection Rules 2007.

If you require any further information please contact the COP costs team on 0113 246 0622 or email copcosts@clarionsolicitors.com.

 

Welfare Costs within the Court of Protection

Stephanie KayeLeave a comment

Rule 157 of the Court of Protection Rules 2007 states that “where the proceedings concern P’s personal welfare, the general rule is that there will be no order as to costs of the proceedings or that part of the proceedings that concerns P’s personal welfare”. Please note however there are exceptions to this rule.

If the general rule is applied, each party involved in Court of Protection proceedings which concern the P’s personal welfare are liable for their own costs. On the other hand, Rule 159 states that in some circumstances, the Court may depart from the general rule. Before an Order can be made, the Court of Protection will take into account these variables:

  • the conduct of the parties;
  • whether the party has succeeded on part of their case, even if they have not been wholly successful; and
  • the role of any public body involved in the proceedings.

In terms of the conduct of the parties, the Court of Protection will consider:

  • conduct before and during the court proceedings;
  • whether it was reasonable for a party to raise, pursue or contest a particular issue;
  • the manner in which a party has made or responded to an application or a particular issue;
  • whether a party who has succeeded in their application or their response to an application exaggerated any matter contained in the application or response.

It is important to note that even if one or more of the above variables are applicable to a case, the parties should not expect the Court to make an Order and therefore they should be able to bear their own costs.

Welfare Deputies

Deputies can be appointed to make decisions in respect of P’s personal welfare however these are only applicable to extreme cases. Paragraph 8.38 of the Code of Practice states that a “Deputy for personal welfare decisions will only be required in the most difficult cases where important necessary actions cannot be carried out without the Court’s authority, or there is no other way of settling the matter in the best interests of the person who lacks the capacity to make particular welfare decisions”.

Before a Welfare Deputy is appointed, the Court will consider the evidence and make decisions in relation to the following:

  • Deciding where P should reside;
  • Deciding what contact, if any, P should have with any specified person;
  • Making an Order prohibiting a named person from having contact with P;
  • Giving or refusing consent to the carrying out or continuation of a treatment by a person providing healthcare for P;
  • Giving a direction that a person responsible for P’s healthcare allows a different person to take over that responsibility;
  • Deciding whether P has the capacity to marry and the capacity to have sexual relations.

Where a Welfare Deputy is appointed, they are entitled to recover their costs from P’s estate on the basis that there is provision to do so within the Order. Practice Direction B (Part 19) to the Court of Protection Rules 2007 states “where the Court appoints a professional Deputy for personal welfare, the Deputy may take an annual management fee not exceeding 2.5% of P’s net assets on the anniversary of the Court Order appointing the professional as Deputy for personal up to a maximum of £500”.

If you require any further advice or assistance in relation to your Court of Protection costs, please do not hesitate to contact the Clarion COP Costs team on COPCosts@clarionsolicitors.com or 0113 246 0622.