What Costs Are Reasonable for a Deputy? JR v Sheffield Teaching Hospitals NHS Foundation Trust provides an explanation.

At a glance, the costs of a professional Deputy may seem expensive. However, the level of knowledge and work undertaken by a Deputy justifies these costs, especially in a case where the award was of substantial value. Once broken down, the costs of a Deputy are reasonable and can be justified.

Case summary

The Protected Party is a 24-year old with severe cerebral palsy. He suffered intracranial haemorrhage and brain injury following a traumatic premature birth and during a breech delivery. His litigation friend brought a clinical negligence claim on his behalf, arguing that the Protected Party’s injuries could have been avoided by a caesarean delivery. The Defendant accepted liability as the brain injury could have been avoided.

At the settlement hearing, some heads of loss had been agreed, but the costs of the professional deputy remained in dispute.

All parties accepted that the Protected Party lacked capacity to look after his own financial affairs, and predicted that this would be the case for the remainder of his life time. Therefore, a Professional Deputy was to be appointed; the cost of which continued to be argued.

It was deemed that although the Protected Party’s parents were supportive, it was not appropriate for them to administrate the Protected Party’s financial and property affairs. They had stated that they wanted to work alongside the Deputy, not against them. The Protected Party had some level of understanding and communication, so the Deputy was obliged to liaise directly with him.

What is considered reasonable for Deputyship costs?

For annual management

Year Claimant Costs Defendant Costs Award
1 30,605 plus cost of 2 visits 14,000 inclusive of 2 visits 30,000 inclusive of visits
2 21,492 plus cost of 2 visits 9,000 inclusive of 2 visits 20,000 inclusive of visits
3 17,040 plus cost of 1 visit 8,000 inclusive of 1 visit 15,000 inclusive of visits
4 17,040 plus cost of 1 visit 8,000 inclusive of 1 visit 15,000 inclusive of visits
5 onwards 11,232 plus cost of 1 visit 7,000 inclusive of 1 visit 10,000 inclusive of visits

The parties agreed that for extras such as transfers of Deputies, Wills, co-habitation or pre-nuptial agreements and “crisis payments”, a further £38,160.00 was reasonable.

The Judge allowed a total of £898,993.00.

This judgment can then be compared to the PNBA Facts & Figures 2017/18 (pages 258-288) whereby this outlines what could be classed as reasonable when awarding damages to cover the cost of the claimants Deputyship fees. Please refer to the table below.

Year and Expected Work to be Undertaken During the Deputyship Management Estimated Costs
Deputyship Application £6,638
1st Deputyship Year £32,570
2nd Deputyship Year £23,666
3rd Deputyship Year £19,775
Thereafter annual costs of £15,959 x 21.28 £339,607
Applications for appointment of new Deputy (x2) £7,588
Statutory Will Application £14,538
Contingency for crises £6,360
Preparation of tax returns £600 p.a x 24.28 £14,568
Winding up – single payment £1,800
 

 

Total Costs

 

 

£467,110.00

Finally, it’s noteworthy that all Deputyship costs are assessed by the Senior Courts Cost Office and the fee earners are regularly limited to the SCCO Guideline Hourly Rates whilst costs are awarded for Deputyship work, this is further scrutinised on assessment based on what is reasonable, proportionate and necessary in the Protected Party’s best interests.

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

 

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Unusual Granting of an Order to Prevent the Protected Party from knowing the full details of his Personal Injury Settlement following an application made by his Professional Deputy.

In this personal injury case, the judge had to grapple with an unexpected question – should a Deputy, appointed to manage the personal injury payment made to a brain-injured claimant, be allowed to not tell the claimant the exact amount that was awarded to him?

The case of EXB v FDZ

The case of EXB v FDZ (2018) was very unusual in that it involved an application by the Protected Party’s professional Deputy, and his mother as Litigation Friend, to prevent the Protected Party from knowing the full details of his personal injury settlement, which was deemed to be in his best interests.

This was a complex matter, as the Court recognised that withholding such information inadvertently affected the Protected Party’s rights. Judge Foskett explained in his judgement that he had never come across this issue before and he called upon assistance from Ms. Butler-Cole as a ‘friend of the Court’.

The Protected Party

The Protected Party sustained orthopaedic injuries, alongside a severe brain injury following a road traffic accident. The Protected Party was a backseat passenger in a car driven by the First Defendant. The Protected Party was not wearing a seatbelt and his damages were reduced accordingly, following an admission of contributory negligence.

Why was it in the best interests of the Protected Party to withhold settlement info?

The applicants submitted evidence from both themselves and professionals which detailed the reasons as to why it was in the Protected Party’s best interests to withhold the settlement information.

The Protected Party’s neuropsychologist stated that “Such knowledge would translate and impact upon his behaviour”. It was believed that the Protected Party would become fixated by the sum of money, that it would lead to him being extremely vulnerable and placed into a situation where he was likely to be financially exploited. Interestingly, the Protected Party himself expressed to his Deputy and the Court that he would be better off not knowing the sum; however, he also stated that he was conned into making such a statement. Following the accident, the Protected Party was very impulsive, and he often became very anxious when it came to money, struggling to budget and often living beyond his means.

The Judge gave careful consideration to the evidence submitted, as well as reviewing the relevant legislation, such as the Mental Capacity Act 2005 and the UN Convention on the Rights of Persons with Disabilities (CRPD). Following this, the Judge held that the Protected Party lacked the relevant decision-making capacity, finding that it was in the Protected Party’s best interests not to be told the value of the reward. The Judge also considered whether it was within the scope of a normal Deputy Order not to reveal the sum; however, the Deputy argued that it would make the Deputy’s life more difficult if the Protected Party believed that he was personally withholding the information and it was considered more appropriate for the Deputy to state that the Court prevented him from doing so.

Costs of the application

The next issue that arose was in respect of the costs of the application. The Claimant sought the costs of the application to be paid by the Third and Fourth Defendants of the Personal Injury claim, as their tort had necessitated. The Third and Fourth Defendants objected to paying the costs. Their defence stated that “they should not be responsible for the costs because all of the issues between them and the Claimant were concluded by the Settlement which was approved in April 2018” and that this particular issue was a ‘solicitor/own client’ dispute. Within the remit of the initial Personal Injury claim, there was no claim for costs attributable to this issue within the Schedule of Loss and there was also the fear that there may be an “open-ended commitment to pay the costs associated with any repeat applications”.

As the issue had been dealt with under the Court of Protection, it was necessary to apply the Court of Protection costs rules. The general rule being that where the issue concerns financial matters, the costs of all parties are to be borne from the Protected Party’s estate (Rule 19.2). The Court does have a broad discretion to depart from the general rule, if circumstances made a different order more appropriate (Rule 19.5). In this case, the Third and Fourth Defendants had not been made formal parties to the application, but they had been provided with an opportunity to make representations regarding the Costs Order being sought.

Judge Foskett held that the costs were to be borne by the relevant Defendants, as the need to make the application arose directly from their actions following the injury caused to the Protected Party, therefore departing from the general rule.

It will be interesting to see whether there will be any similar applications and what the outcomes will be. The Judge has invited the appropriate bodies to consider these matters and decide whether a consultation on this issue will be required.

This blog was prepared by Danielle Walker who is a Costs Lawyer within the Court of Protection Team. Danielle can be contacted at Danielle.walker@clarionsolicitors.com