Tag: SCCO

No Costs Recovery in Failed Deputyship Case Where P Had Capacity

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The Court of Protection has determined that it should not make a costs order against a Protected Party (P) who was the subject of a failed application by a professional Deputy to be appointed to handle his affairs.

This decision offers some important guidance on costs in Deputyship Applications, particularly when an application ultimately fails because the person concerned is found to have capacity.

Background

  • A professional Deputy applied to be appointed as property and affairs Deputy for a vulnerable adult. However, a section 49 report later confirmed that P did, in fact, have capacity.
  • P sustained frontal lobe damage more than 20 years ago following an assault, which has a mild impact on his executive functioning, compounded by excessive alcohol use. The Deputy made a COP1 application seeking appointment as a professional deputy for P after a referral by City of York Council, who believed P lacked capacity to manage his affairs. But a later medical report found he had the capacity to manage his property and affairs.
  • The Deputy appealed against the decision made by the District Judge who dismissed the application and made no order for costs, meaning the Deputy could not recover any of their expenses.

The Appeal

Harris J allowed the appeal in part, finding that the District Judge had misapplied the law on costs. Harris J found that the District Judge had made a mistake on costs by failing to apply the general rule that in property and affairs Deputyship applications costs shall be paid by P or charged to P’s estate (rule 19.2, Court of Protection Rules 2017) (SI 2017/1035)) (COP 2017). The District Judge had also failed to consider the grounds for departing from this with reference to the factors set out in rule 19.5 of the COP 2017.

Reassessing the Costs Position

  • Harris J reconsidered the matter from the start. While confirming that the general rule should be the initial benchmark, the Judge stressed that it is not absolute. There is a strong public interest in bringing appropriate applications before the Court of Protection, but that alone does not guarantee cost recovery for applicants.
  • Harris J concluded that as a matter of natural justice, “it may appear perverse that P should pay the costs of the Deputy – who is a complete stranger to him – for an application he did not invite, always opposed, had no choice but to respond to, and ultimately was successful in defending.

In reaching the decision, the judge focused on two key factors:

1.    P having no choice but to respond to litigation he did not invite but being successful in defending the application and, as a vulnerable adult, having no way to protect himself against any costs exposure.

2.    The professional Deputy choosing to bring and pursue the application and being in a position to assess litigation risks.

Outcome

  • Balancing these elements, the court concluded it was fair and just to depart from the general rule.
  • Harris J concluded that the application to be appointed as Deputy ultimately failed and it was the responsibility of the professional Deputy to mitigate any costs exposure.
  • Where an application has been made by a professional Deputy on referral from a local authority, the court suggested that the local authority could consider assuming the costs burden through a contractual arrangement with the Deputy, instead of imposing the burden on vulnerable adults.
  • This costs decision shows that courts are prepared to depart from the general rule on costs where there is good reason to do so.

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

Updated practice guidance released by the OPG and SCCO – an important reference point for professional deputies!

Ella WilkinsonLeave a comment

On 28 May 2025, the good practice guidance previously issued by the Office of the Public Guardian (OPG) and the Senior Courts Costs Office (SCCO) was updated. This guidance exists to assist professional deputies in respect of their costs estimates, preparing and submitting bills for assessment and in understanding what work can be claimed and recovered. The vast majority of the contents remain similar to the original guidance released by the OPG and SCCO dating back to 2016 in respect of the expectations from professional deputies in regards to general good practice and the SCCO’s approach to assessment, however more recent developments have now been factored in such as the use of the E-bill and the CE File system, the case of ACC and Others, the latest stance regarding post death costs and the increased hardship threshold.

This blog summarises the key points raised, to ensure that professional deputies continue act in P’s best interests and comply with the requirements of the OPG, SCCO and Court of Protection. Importantly, the guidance issued is not intended to replace existing provisions such as the relevant Civil Procedure Rules, Practice Direction 19B (supplementing Part 19 of the Court of Protection Rules 2017), the Mental Capacity Act (2005) Code of Practice, and the OPG professional deputy standards.

Principles of Good Practice

Professional deputies are entitled to claim reasonable and proportionate costs. Key expectations include:

  • Aligning costs with the value of P’s estate and the work involved
  • Delegating tasks to appropriately graded staff
  • Acting transparently and always in P’s best interests
  • Evaluating whether their continued role remains necessary as P’s situation stabilizes
  • Where deemed appropriate, deputies should be open and transparent about their charges with P’s relatives

Deputies who fail to follow this guidance may need to justify their decisions, and the OPG may take action, including applications to remove a deputy where concerns arise.

Costs Estimates

  • The OPG105 must be submitted with the annual deputyship report, and in most cases it should take no more than 30 minutes to complete
  • If billed costs exceed the original costs estimate by 20% or more, deputies must explain the discrepancy
  • Significant changes in P’s circumstances should be reported to the OPG if they will impact costs

Assessment of General Management Costs

The SCCO’s role is to assess whether claimed costs are reasonable and proportionate. Their key considerations include:

  • Hourly Rates: these must generally align with the relevant SCCO Guideline Hourly Rates (except in the most exceptional circumstances)
  • Delegation: routine tasks, such as arranging payments or bank reconciliations, should be completed by administrative staff or Grade D fee earners at best. In addition, when reviewing time claimed for delegation, the SCCO will consider if the time clamed was reasonable, proportionate, progressive and that it serves to reduce costs
  • Home Visits & Contact: usually, only one home visit per year is allowed unless justified
  • Welfare Work: these cannot be claimed under property and affairs general management costs unless the Court of Protection gives permission
  • Overheads: routine supervision, internal communication, and basic administrative tasks are considered overheads and are not generally not recoverable
  • Payment of Bills: three minutes will be allowed for payments per instance, and no further time is usually allowed for amending records to reflect payments made or advising a party of a payment processed to them
  • Financial Beauty Parades: generally, only one senior fee earner will be allowed on assessment for attending these meetings
  • File Notes: if no or little documentary evidence is supplied in support of the bill and/or particular items of work claimed, it is likely that the SCCO will disallow the costs claimed
  • Litigation Costs: the SCCO will disallow costs which could be claimed within the context of ongoing litigation
  • Draftsman’s Fees: a Grade D rate will be allowed for the preparation of bills of costs, unless in exceptional circumstances

ACC & Others Judgment

Where work falls outside of the scope of general authority for the management of P’s property and financial affairs, a professional deputy may need to apply for further authority in respect of this work and the associated costs as per ACC & Others. The full judgment can be seen here: ACC & Ors ( property and affairs deputy ; recovering assets costs for legal proceedings) – Find Case Law – The National Archives, and we have also previously prepared a blog summarising this and the practical implications for deputies which can be found here: ACC & Others – A Useful Recap – Clarion Legal Costs

Submissions of Bills of Costs & Supporting Documentation

  • Bills of costs should ideally be submitted annually for assessment, as close to the end of the management year as possible
  • Bills covering less than a year can be submitted where there has been a transfer of deputyship and the deputy intends to realign the management period dates with the new order. If this transfer is internal within the same firm, such bills must span at least six months of work unless in exceptional circumstances
  • Bills must be submitted via CE file, and can either be the traditional bills of costs set out under Practice Direction 47 CPR Part 47, or in the newer E-Bill format
  • The short form bill format is required where costs claimed are under £3,000.00 (excluding VAT and any disbursements claimed)
  • Supporting documents submitted alongside the bill should include the OPG105, deputyship report (OPG102/103), any relevant Orders made by the Court of Protection providing authority for work falling outside of the general authority, as well as evidence in support of the hourly rates claimed (client care paperwork)

Post-Death Costs and Hardship

On P’s death, the deputyship will come to an end and the jurisdiction of the Court of Protection will cease. Costs incurred post-death are not assessable by the SCCO. The deputyship order however will continue to authorise detailed assessment of costs incurred during P’s lifetime, if these cannot be agreed with the executor of the estate. If the professional deputy is also appointed as executor, a potential conflict of interest arises and a bill of costs should be submitted to the SCCO for assessment.

Where P’s estate has a value of less than £20,300.00, deputies must follow specific directions set out under Practice Direction 19B with regards to hardship. This states that in such circumstances, ‘the professional deputy for property and affairs is not permitted to apply for assessed costs; instead they may take an annual management fee not exceeding 4.5% of P’s net assets on the anniversary of the court order appointing the professional as deputy’.

Summary

The guidance aims to encourage fairness, consistency, and clarity in the way the costs of professional deputies are managed and assessed. For deputies, it reinforces the importance of transparency, efficiency, and the diligent management of P’s affairs.

Professional deputies are urged to familiarise and refresh themselves with the full guidance and relevant existing provisions to ensure that they continue to act in line with best practice expectations and requirements.

If you would like to review the guidance in full, this can be found at: Professional Deputy Costs – GOV.UK

CD, Re (Treatment: Haemodialysis) [2024]

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Application for declarations that it was not in CD’s best interests to have new haemodialysis catheter fitted and that he should instead receive palliative care.

CD is a 66 year old originally from Bangladesh and has end-stage renal disease and other conditions. Problems arose with his catheter and attempts to insert a long-term tunnelled catheter were unsuccessful due to his agitation, leading him to repeatedly try to pull it out. While there was consensus that the temporary catheter needed to be removed, the NHS Trust proposed that CD should receive palliative care instead.

Professional evidence indicated that without dialysis, CD might have only two weeks to live, but with treatment, he could potentially survive for an additional three to six months.

However, Judge Poole ultimately rejected this proposal. He recognized the complexities of the situation but emphasized the importance of preserving life.

He states at [29] “The presumption that steps should be taken to preserve life, the family’s views, evidence as to CD’s beliefs and values and his past wishes and feelings, and the evidence of the pleasures that he still derives from interactions with his family and others and from good food, weigh in favour of his undergoing the procedure and continuing with dialysis. I am cautious about finding that it is in his best interests to undergo a procedure the purpose of which he might unknowingly frustrate by pulling out a catheter, but without the insertion of a catheter his life cannot be preserved, and his life, if preserved, will continue to bring him real benefits alongside its burdens. There is no advanced decision to consider but the evidence is that CD is a man who, if he still had capacity, would not want his life to end prematurely unless its burdens became wholly overwhelming.”

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

SCCO – Note to Practitioners July 2024

Ellie Howard-Taylor1 Comment

Earlier this month the SCCO released a note to all Court of Protection (COP) practitioners and users of the SCCO. As the majority are aware, there are significant delays at the SCCO and unfortunately we have not seen any major change to this over the last year. However, during these delays there are a number of things you as COP practitioners can be doing to speed up the process.

E-Bills

In November 2022 the E-bill was introduced and launched for all COP assessments at the SCCO. You should now only be submitting an E-bill with the SCCO for assessment. The SCCO have asked that you check filings to ensure they are accurate  and contain the correct information before submitting for assessment. The E-bills must be completed and signed by the appropriate persons in tab 11, please note that it must be an electronic signature.

Bill title – This should clearly state the type of costs being claimed and the authority being cited.  For General Management bills, both start and end dates of the period must be provided.  If you are claiming more than one type of costs and have more than one court order giving authority for assessment, this should be clear from the title.

Further information on common errors which have been identified in the E-bill has been produced by the SCCO and is available from the SCCO directly. Please email scco@justice.gov.uk

Orders

In most cases, the Deputyship order will provide authority for a detailed assessment of costs for a standard general management period. However, where a Deputy is replying on an Order in addition to the Deputyship Order for the assessment of costs, for example an ACC Order of authority to purchase a property, it is necessary to ensure that Order is filed when filing the E-bill.

For instances where you have not received the Order, it is necessary to include a comment in the filing comments section and ensure that the Order is filed as soon as received.

CE File

When filing any type of bill, please ensure that the filing ‘sub-type’ selected is the correct one

– For COP-E Bills, choose ‘COP-E Bill (profit costs….)’
– For traditional paper bills, choose ‘Bill (profit costs….)’

– The costs band selected should be based on the profit costs alone (without disbursements or VAT) and not the grand total of the bill.

The filing of supporting papers

Where you have a physical paper file, a bill will only reach the Costs Officers’ queue once the supporting documentation has been received.

In addition, it is necessary to ensure the filing acceptance is included within the supporting papers and an address is clearly written for the return of the papers.

Where you have an electronic bundle of papers to upload via the Document Upload Centre (DUC) and if you are registered as a permanent user, the SCCO have indicated that they would assume supporting documentation would be uploaded to the DUC and the bill will be placed into the queue. If you are only a partial use of the DUC you must indicate in the filing comments whether you are filing papers for the bill on the DUC.

Absence of any comments for a partial user will presume a physical copy of papers will be submitted, which could result in a delay.

Supporting papers (electronic files)

The SCCO have provided guidance on how the electronic files should appear:

  • The SCCO reference should be included in the case reference field
  • There should be an index provided in which each item/page has a clear description and the date of the document.

They further advised that within the beginning of the bundle there should be:

  • OPG102 and OPG10
  • Client care letter/engagement letter
  • Counsel fee notes (where appropriate)
  • Invoices for any disbursements claimed by the Deputy

Following these documents:

  • The file of papers should be in chronological order from the oldest to newest
  • All emails should show the date clearly, time and who they were to and from
  • File notes and attendance notes should clearly state the date, fee earner and time claimed.

Bill Details

On tab 2 of the E-bill, the OPG105 estimate should be included. Where this has been exceeded by more than 20%, an explanation should be given. Where there is no OPG105 estimate because it was an application or first general management period, this box should not be empty. Instead enter ‘N/A First Year’ or N/A Application’.

Directly underneath is the assets value box. Again here there should a value in this box, but there the value is unknown please include an explanation as to why.

If you have any questions regarding the information above, please get in touch with myself at ellie.howard-taylor@clarionsolicitors.com or contact the SCCO directly at scco@justice.gov.uk.

 

Guidance on interim payments within Court of Protection

Casey McGregorLeave a comment

Practice Direction 19B sets out the guidance on the deputy costs and the charging structure. The guidance states that a deputy can receive an interim payment in advance of the assessment for the year, which is proportionate and reasonable. It is noted that the overall level of interim payments received cannot exceed 75% of their estimated costs submitted to the Office of the Public Guardian or the WIP (whichever is lower) within a reporting year.

If you have a situation whereby, the interim payment taken exceeded your estimated costs or the WIP, you will need to credit note and refund this overpayment immediately.

Once the bill is assessed by the SCCO, and a final costs certificate has been issued, the Deputy will be entitled to receive the balance for that year, which would be the difference between the total of interim payments received during the year and the total assessed costs as set out in the final costs certificate.

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

Update from the SCCO on the COP-E Bill

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Please see below an update released by the SCCO on the extension to the cut-off period to accepting version 1 of the COP-E Bill.

Following the publication of COP-E Bill version 2.0, a minor error was detected in the filtering functions on the summary sheets and print detail sheet where information from the ‘example data’ COP-E Bill was still visible in the filter dropdowns. The SCCO have advised that this does not affect the workability of the previously published Version 2. The SCCO will continue to accept any bills where the earlier copy of Version 2 was used.

The cut-off date for when Version 1 will no longer be accepted has been extended to 6th November 2023. From this date, only V2.0 and V2.1 of the COP-E Bill will be accepted.

Any version 1 electronic bills must be submitted prior to 6 November 2023. The SCCO have confirmed that only V2.0 and V2.1 of the COP-E Bill will be accepted after the extension date.

Impact for You

The changes outlined in the update are minimal and they are more for the attention of the costs draftsman when preparing E-Bills. The team at Clarion are aware of all of these changes and these will all be implemented going forwards.

The main changes that you should be aware of are outlined below:

  • Front Sheet – there is now a box to include the DX address of the firm. This can be added in if applicable to you, however if you do not have a DX address, this can be left blank.
  • Bill Detail – The activity name for Letters/Emails out on Tab 6 has been amended to be grouped together.
  • Activity Summary – Tab 8 shows a collective summary of how much work has been done by each fee earner grade. 
  • Certification – Tab 11 now shows two titles which are ‘Pre-Assessment Certificate’ and ‘Post-Assessment Certificate’. Please note that the pre-assessment certificate should be completed prior to filing and the post assessment certificate is only to be completed when applying for the Final Costs Certificate.

The version of the bill can be seen in cell A1 on Tab 1 of the bill.  At Clarion, we are now producing V2 of the bill in anticipation of the new deadline, so any bills received from us will have V.2 in this cell.  

It is essential that bills follow the template and guidance notes in force at the time, as any which do not will be rejected. We have ensured that all updates have been carried out and so all of our bills prepared will be prepared under the new format.

How to access the approved template?

The updated copy of the template (Version2.1) is now available on the Judiciary website.

Electronic bills in Court of Protection cases – Pilot in the Senior Courts Costs Office

You can find out more about our services here or you can contact Maidie Deighton at Maidie.Deighton@clarionsolicitors.com for further information.

The SCCO Guide 2023: Key Points for COP Practitioners

Ella WilkinsonLeave a comment

The Senior Courts Costs Office have recently released their 2023 guide, and within this Section 27 specifically deals with Court of Protection cases. Please find below a summary of the main points raised.

Reference to Fixed Costs:

The guide references the fixed costs available to practitioners, which can be found under Practice Direction 19B Court of Protection Rules (2017). The Court Order in place will state whether fixed costs apply, or whether the Deputy is entitled to a detailed assessment of their charges. Deputies have the option of electing to take fixed costs instead of proceeding with detailed assessment if deemed appropriate in the case. Further details on the fixed costs available can be found at: https://clarionlegalcosts.com/2022/01/11/strongwhat-fixed-costs-can-be-taken-within-court-of-protection-cases-strong/  

Process of Assessment:

Where P is alive and continues to lack capacity to manage their property and affairs, then the Deputy is unable to simply agree their costs. Where P is subject to an ongoing Order in the Court of Protection and it is ordered that the Deputy’s costs are payable out of the estate of P, then a detailed assessment will be required. However, there are some exceptions where a Deputy is available to agree their costs without the need for assessment, such as in agreeing their outstanding costs with a trustee or administrator where P has passed away, or in agreeing their outstanding costs with P if they have regained capacity and are no longer subject to an Order in the Court of Protection.

To proceed with a detailed assessment, the Deputy is required to lodge with the SCCO:

  • A request for detailed assessment via form N258B (suitable for the majority of cases where the fees are payable out of a fund)
  • A copy of their bill of costs
  • The document giving the right to detailed assessment (Order)
  • Copies of all Orders made by the Court in relation to the costs to be assessed
  • Copies of any Counsel’s fee notes or expert fees claimed within the bill
  • Written evidence of any other disbursements claimed that exceed £500.00
  • A statement signed by the receiving party providing their name, address for service, reference and telephone number
  • A statement including a postal address of any person having a financial interest in the outcome of the assessment, including confirmation of whether this person is a child or a Protected Party
  • Relevant fee payable (currently £87.00)
  • Copies of the OPG102/OPG105 for the applicable year where the assessment relates to general management of P’s property and financial affairs

As a general rule, bills of costs with profit costs of less than £100,000.00 will typically be dealt with by a Cost Officer, with bills in excess of this or more complex in nature tending to be dealt with by a Costs Judge.

Format of bills:

As has been the case since 1 January 2020, all Court of Protection matters are to be e-filed using the CE-File system.

From November 2022 to March 2023, a successful pilot scheme ran regarding the use of the e-bill for Court of Protection cases. E-bills can continue to be filed with the SCCO, however the older style paper bills can also still be prepared and submitted at this time. For general management bills, the year covered within the bill should also be stated at the start, and all bills should include the title of the matter, name and address of the firm, contact number and the matter reference.

For bills with profit costs of under £3,000.00 excluding VAT and disbursements, the Deputy can elect for a short form bill of costs to be prepared for assessment.

Hourly rates:

For work done up until 31 December 2017, the Costs Officers will continue to apply the 2010 Guideline Hourly Rates when assessing bills, unless exceptional circumstances apply.

Further to the decision in PLK and Others (2020) and the rates considerations undertaken, the SCCO have clarified that the judgment does not serve to disapply the indemnity principle in that the practitioner is able to bill at higher rates than provided for within their retainer/client care paperwork. If the rates stated with a retainer are in line with the 2010 Guideline Hourly Rates, then the Deputy is unable to claim and recover any higher rates until this has been updated. If a retainer is silent as to rates or there isn’t a retainer in place, then the Costs Officers will take the approach of applying the 2010 Guideline Hourly Rates up until 30 September 2021, and the 2021 Guideline Hourly Rates thereafter.

In the eventuality that a retainer provides for the 2010 Guideline Hourly Rates alone or for a claim in line with the judgment in PLK and Others, then the Deputy is unable to claim higher rates until this paperwork is updated to facilitate a claim for the 2021 Guideline Hourly Rates. The SCCO have reiterated that it is the responsibility of practitioners to ensure that their paperwork is kept up-to-date, in order for them to keep benefitting from any rate increases.

Authority to assess costs:

The SCCO have confirmed that the Costs Officers will treat the costs of a deputyship application as ending on the date of issue of the Order, which it is noted may be some time after the actual date of the Order. Therefore, any costs incurred after the issuing of the Order will be treated as falling within the first period of general management.

When a Deputy then lodges their bill of costs for the initial management period following their appointment, they should provide a copy of the Order authorising the assessment of their costs. However, the SCCO have advised that they keep records of Orders, and as such that the Deputy is not required to continue to submit a copy in filings for subsequent management years.

In addition, where the Deputy has the option of either taking fixed costs or opting for detailed assessment and chooses to have their costs assessed, then it is good practice to confirm within the narrative of the bill that they have not taken fixed costs for the work undertaken.

Options post assessment:

If the Deputy is not content with the outcome of the assessment and disagrees with reductions made, then they have the option to contact the Costs Officer within 14 days of receiving the provisional assessment to request an informal review of the bill. If the Deputy continues to be dissatisfied after the Costs Officer’s response, then they can progress the matter and request that the SCCO fix a date for an oral hearing before a Costs Judge.

Where a Deputy wishes to accept the provisional assessment then the bill summary requires completion and submission, along with certifying the relevant section of the bill of costs. The Final Costs Certificate will thereafter be issued by the SCCO.

Welfare work:

The general rule with regards to health and welfare work is that there will be no Order as to the costs of proceedings, unlike for costs incurred in relation to property and financial affairs which will generally include an Order for costs to be paid by P or charged to their estate following assessment. If proceedings concern a mix of the two, then the SCCO will as best as possible apportion costs between respective issues.

Costs of sale or purchase of property:

The assessment of costs for these matters generally will take place at the end of a transaction, unless the Court directs otherwise. Unless a sale is completed by trustees, then the fixed rates set out under Practice Direction 19B will apply.  

Post-death costs:

An Order or Direction that costs incurred during the lifetime of P are to be paid out of the estate can be made up to six years after their death. Costs up until the date of the death of P are covered under the authority given in the Deputyship Order, however if these cannot be agreed with the personal representatives, then the outstanding charges can also be assessed under the existing Deputyship Order.

Where P dies whilst an assessment is pending, the Deputy should inform the SCCO in order to suspend the assessment of costs incurred after the date of death until a final direction is obtained, which the Deputy is required to apply for from the Court. Once costs have been assessed, the Deputy will be required to serve a copy of the bill on the appointed personal representatives, or alternatively can seek to agree their outstanding charges with the personal representatives instead of opting for the assessment process.

Payments on account:

Deputies are able to take payments on account, known as interim bills, for the first, second and third quarters of the year in respect of annual management charges, taking into account the size of the estate and functions performed and ensuring that their charges are proportionate and reasonable with regards to the same. Interim bills are to not exceed 25% of the estimated annual charge each quarter, and should not exceed 75% across the management year, as set out under Practice Direction 19B.

In summary, the Court of Protection section of the SCCO Guide for 2023 provides clarification as to key information for professional Deputies with regards to the assessment process and the recovery of their costs for work undertaken on P’s behalf, and is a useful reference tool in this regard for practitioners.  

Ella Wilkinson is an Associate in the Costs and Litigation Funding team at Clarion, and can be contacted for further information at ella.wilkinson@clarionsolicitors.com

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

Reductions to COP assessments and what you need to know about them

Casey McGregorLeave a comment

At Clarion, we prepare over 2500 Court of Protection bills of costs per year to be assessed by the Senior Court Costs Office. We also review the bills once they have been assessed and monitor the common reductions. Based on our experience, we have identified the 5 most common reductions and the reasoning behind the same. The below 5 reductions are in line with published case law and are therefore not likely to be allowed if a re-assessment is requested.

Arranging payments

You may notice that arranging payments are reduced throughout the bill of costs. This is in line with the Case of Jamie Walker (2002) whereby Master O’Hare defined checking the file to ensure an invoice has not already been paid, checking sufficient funds are in the account and writing a cheque and getting it signed as non-fee earner work. Arranging payments and considering invoices are typically reduced to 3 minutes within the bill of costs at Grade D rates in line with this. We therefore suggest payments and considering invoices are delegated to a Grade D fee earner. This is something that the Professional Deputies Forum would like to challenge in the future, as significant payments require consideration and often approval above Grade D rates. We hope that this case law will be reconsidered in the future.

Enclosure letters

Where you may have sent a letter enclosing payment of an invoice or an email confirming settlement of an invoice, this will be classed as an ‘enclosure letter’. In line with the case of Leighanne Radcliffe (2004), letters were reduced from the standard rate of 6 minutes to 3 minutes within the bill of costs. We therefore recommend that enclosure letters are delegated to a junior fee earner and the time is limited where possible to prevent overbilling.

Two fee earners at an attendance

If you have claimed two fee earners in attendance, in our experience, it will only be allowed in exceptional circumstances. Typically, the second fee earner’s time is struck out or reduced. In the case of Garylee Grimsley (1998) and further to R v LegalAid Board Ex Parte Bruce (1991), two fee earners at an attendance were reduced as it was deemed to be duplicative work. It stated, “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”. Therefore, we recommend that two fee earners should only be claimed at an attendance whereby it is necessary and reasonable to do so, as there is a higher cost to the Protected Party. Cases where two fee earners may be considered reasonable are where there is a significant safety risk or the second fee earner has different expertise, but this time is still subject to assessment and it’s important that the reasoning is clear within your file notes to justify the attendance of both fee earners.

High level of contact with the Protected Party

You may see a reduction occur whereby there is a high level of contact with the Protected Party, as it is seen to be the Deputy’s duty to keep the costs at a minimum for the Protected Party. Excessive contact would lead to a higher level of costs, which is not in the best interests of the Protected Party. A reduction could occur in line with the case of Trudy Samler (2001). This case raises the question of whether the contact was instigated by the Protected Party and whether the Deputy should be paid for such contact. Excessive contact with the Protected Party could therefore be reduced due to this case and we recommend that Deputy’s keep an eye on this. We recommend that Deputies try and manage the levels of contact with any party and involve other professionals to support the Protected Party or their family in order to manage costs.

Record keeping

Work in relation to updating the Protected Party’s financial records is typically reduced by the Costs Officers on assessment. In the case of Philpott (2015- unwritten), Master Haworth stated “It seems to me that the inputting of data into P’s ledger is not fee earning work. At most it is bookkeeping which, to my mind, is an overhead of a solicitor’s practice. This work has to be distinguished from for example, reviewing or perusing the data to come to a decision as to what then needs to be done with a P’s funds. To my mind that may well amount to fee earning work for which the solicitors can charge separately at the appropriate rate.” Therefore, we recommend that the work is distinguished in this way in order to avoid the reduction on assessment and the word ‘updating’ should also be avoided.

We are happy to review the assessed bills and provide advice to any professional Deputy who is not happy with the outcome of their assessment. Please contact Casey for more information at casey.mcgregor@clarionsolicitors.com

The use of electronic bills in Court of Protection cases

maidiedeightonLeave a comment

Senior Costs Judge Andrew Gordon-Saker has now give some feedback on the use of the COP electronic bill which was implemented on 1 November 2022. The conclusion of the pilot is that electronic bills in this format should continue, which is great news for solicitors.

30-40% of Court of Protection bills were received in the electronic form and these have been a success in terms of the efficiency in undertaking assessments. The turnaround of the electronic bill of costs has been approximately 6 weeks, compared with a 6 month turnaround of the traditional bill.

The pilot is due to end on 28 April 2023 for all involved in Court of Protection cases following 5 months of review and this now means that Deputies, legal representatives and other legal professionals will file their bill in the electronic spreadsheet form using the approved template.

New bills and existing cases (with a CE File reference number) can be submitted to the Court using this method for assessment.

The SCCO has emphasised the importance of the filing the bill with the options beginning with “COP-E” however a previous blog prepared answers many common questions:

E-Bill FAQs – How does the new Court of Protection E-Bill work?

Please see the judiciary website for the approved template, under Guidance and Resources.

There will be some minor changes to the templates which will be uploaded on the judiciary website so please ensure that this template is used. Bills not compatible with the format will be rejected.

The best method of uploading the documents relating to the bill is as a single PDF with a chronological index via the Document Upload Centre. E-bundles are encouraged and are incredibly useful for those Deputies who work on a paperless or paper-light basis.

Requests for a link to upload files should be sent to: scco@justice.gov.uk.

As a team at Clarion, we were heavily involved in this pilot and we are pleased to see this change being implemented on a permanent basis. It is a great development for Deputies and their teams, speeding up turnaround times for assessment and simplifying the administration involved in the process. Clarion will continue to prepare all bills of costs in E-Bill format.

Additional information on E-Bills can be found here: https://www.judiciary.uk/guidance-and-resources/electronic-bills-in-court-of-protection-cases-pilot-in-the-senior-courts-costs-office/

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