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:
- a Property and Affairs pathway,
- a Health and Welfare pathway, and
- 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 email@example.com.
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.
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.