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COSTS IN THE COURT OF PROTECTION (MASTER PETER HAWORTH and MASTER JENNIFER JAMES, SCCO) Facts and Figures The number of requests for Assessment of Deputy’s costs in the Court of Protection continues to rise. In the last seven complete years the figures are as follows:

Year 1. Total SCCO Assessments

2. COP Assessments

2. as a percentage of 1. (To nearest whole %)

2019 8,385 Projected

2018 15,000 8,186 54%

2017 15,997 7,985 50%

2016 16,884 7,844 46%

2015 15,943 7,286 46%

2014 15,230 7,152 47%

2013 12,406 5,598 45%

2012 11,307 5,427 48%

The numbers of COP bills for 2019 is projected to increase and the ratio of COP cases to all SCCO cases is fairly stable, at close to half of the total. Why are COP costs on the increase? No specific evidence as to why the number of Court of Protection bills has increased; possible reasons why this could be are:

The Court of Protection introduced a revised set of rules and practice directions in July 2015 for more streamlined procedures in order to reduce delays and hear more cases outside London which could have resulted in a greater throughput of cases. Link to index of the above: https://www.judiciary.gov.uk/publications/court-of-protection-practice-directions/

In general terms the introduction of the Mental Capacity Act 2005 in 2007 has increased awareness of the role of the Court of Protection and increased the participation of persons lacking capacity leading to more Court of Protection business and by extension more bills. It also introduced health and welfare jurisdiction. Link to Mental Capacity Act 2005: http://www.legislation.gov.uk/ukpga/2005/9/contents

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More Deputies are electing for Detailed Assessment rather than taking fixed costs, which have been set at a relatively low level over a long period of time and have only increased periodically for inflation.

There has been an increase in Deprivation of Liberty (DOL) authorisation cases by local authorities to the Court of Protection following the judgment in P v Cheshire West. However, DOL matters reaching the SCCO are generally Legally Aided and would be reflected in Legal Aid rather than Court of Protection statistics Link to P v Cheshire West UKSC case: http://www.bailii.org/uk/cases/UKSC/2014/19.html

There is an ageing population leading to the likelihood of a greater number of people losing capacity and requiring the services of the Court of Protection with a consequent increase in the number of Court of Protection bills.

What type of cases? There is no detailed breakdown of the types of COP cases lodged for assessment. The vast majority are general management cases where the professional Deputy continues to manage the client’s affairs on an ongoing basis. Other types of bills include applications for appointment (or occasionally removal) of a Deputy, applications for Statutory Wills and gifts and specific applications to the COP. What should costs practitioners be learning from these cases? Costs practitioners should learn only to claim for costs which are properly recoverable in the bill. A publication entitled “Professional Deputy Costs Good Practice Guidance” was issued jointly by the OPG and SCCO in July 2016 which will help costs lawyers to decide what should properly be included in the bill. There is also guidance on completing estimates of costs which were introduced for Court of Protection costs for the first time from 2016.

Link to PDF of the foregoing Good Practice Guidance: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/538901/19_07_16_Professional_deputy_costs__FINAL.pdf

Link to OPG105 form from March 2016 onwards: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/537796/OPG105-Professional-fees-insert.pdf

Any other thoughts/trends in costs in COP cases? Following a Report to Parliament by the Public Guardian in December 2014 the OPG has adopted a new model of supervision for closer monitoring of professional Deputies’ fees and closer co-operation with the SCCO.

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This has manifested itself in the Guidance and estimates forms referred to in the previous paragraph and led to the OPG taking a more pro-active role in monitoring the level of costs incurred by professional deputies. SCCO The majority of matters are dealt with by a dedicated team of 8 Costs Officers, with the more junior Costs Officers dealing with bills up to a value of £35,000 (plus VAT). Senior or Principal Costs Officers deal with bills of up £100,000. Over that figure they are referred to a Master. The three Masters at the SCCO currently tasked with COP work, are Master Haworth, Master James and Master Whalan. On average the office deals with upwards of 150 COP bills arriving by post (together with their accompanying documentation) each week. Turnaround time depends on workload. The average of one to three weeks is holding up reasonably well. More substantial Assessments are allotted a specific date or week for the Provisional Assessment to take place. Costs Officers are encouraged to annotate the bills they assess to make clear why and in what circumstances costs are being reduced before issuing a Notice of Provisional Assessment. Continuity of repeat work is encouraged where possible (i.e. ensure your latest annual bill goes to the same Costs Officer as last year). Do not be surprised if it assessed by another CO though to ensure consistency and avoid complacency. Although there is nothing in the Rules permitting it a practice has grown up over the years of CO paper reviews of Provisional Assessments at the written request of the Deputy. In 95% of cases once the review has been carried out, the assessment is concluded. Either the original Provisional Assessment, or a revised one, is accepted. In the rare cases where the assessment is not accepted, it is open for a Receiver or Deputy to seek Detailed Assessment pursuant to Rule 47.19(6) in which case an oral Assessment (usually by telephone) will usually be conducted by a Master. There is a right of appeal pursuant to CPR 47.21/22 from the decision of an authorised Court officer to a Costs Judge or District Judge of the High Court. Appeals from Costs Officers are rare, and the power of the Costs Judge or Master hearing the appeal is to re-hear the proceedings which gave rise to the decision appealed against and to make any order or give any directions it considers appropriate (CPR 47.24). Link to above CPR Rules: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-47-procedure-for-detailed-assessment#VIII

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Interested Parties Run-of-the-mill Assessments generally relate to general management charges appointment of Deputies etc. Since the advent of the Mental Capacity Act 2005 (MCA – see link above) it is increasingly common for family members to challenge decisions such as the appointment of a Deputy, or the registration of an Enduring Power of Attorney. The Court hearing these applications has the usual armoury of costs orders at its disposal and in a number of cases it may make a costs order against the interested party or Applicant. In other cases, it will simply order the Deputy’s costs to be paid from the estate of P. Other situations arise where P dies before a Deputy’s bill for general management charges or other matters has been assessed. In all these situations, often when the bill is lodged, it is clear that there are objections from family members, unsuccessful applicants to the Court, or beneficiaries under the will or intestacy of P, to the costs that are claimed. It is important in all these situations for the Deputy or party seeking payment to make these objections clear when lodging their bills for Assessment. In these circumstances, the bills are usually referred to a Master for a Direction to be made pursuant to CPR Rule 47.19A (3) – see link to Part 47 above: “The Court may direct that the persons seeking Assessment may serve a copy of the request on any person who has a financial interest in the outcome of the Assessment”.

What is or is not a “financial interest” is explained in CPD Part 47 paragraph 18.2; here is a link to the Practice Direction: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-47-procedure-for-detailed-assessment/practice-direction-46-costs-special-cases2#18.1 There have been cases proceeding before Costs Officers and/or a Master where it is not apparent that there is an interested party with the result that a Final Costs Certificate (FCC) may be issued without the full knowledge of who the relevant parties are. In some cases, the FCC has subsequently had to be rescinded and the process of Detailed Assessment restarted at considerable cost either to the estate of P, Solicitors or Deputies. What happens re: costs if P dies? The Court of Protection has jurisdiction to protect and empower those who lack capacity. If P dies, then the Estate will be administered by persons their Trustee or Administrator. Alternatively, a living P may receive treatment and regain capacity. In either case, the Court of Protection has no continuing role. In practice this has and continues to lead to problems.

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In practical terms, Court of Protection Practice Direction 24B deals with this “handover” situation. An Application for Final Directions will be required (Form COP9) and the Court may make an Order discharging the Deputyship. This may require a Final Report or may dispense with such (e.g. if the Estate is small). Link to Court of Protection Practice Direction 24B: https://www.judiciary.uk/wp-content/uploads/2015/06/pd-24b-p-ceases-to-lack-capacity.pdf Link to form COP9: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/687974/cop9-eng.pdf If those administering P’s Estate are content to agree/negotiate costs then fine, but if not, then P’s former Solicitors will need to lodge a Bill for Detailed Assessment in the usual way. Any costs incurred post the death of P need to be recorded separately as there is presently no power in the COP Rules to order their payment. These costs may not be insubstantial. Agreeing costs in ongoing Litigation? It is possible for a Deputy to agree costs with the Trustee or Administrators of a deceased P, or to agree with a P who has regained capacity. However, if P is still living and still lacks capacity a Solicitor or Deputy CANNOT simply agree their costs with P’s representatives. If P is the subject of an ongoing Order from the COP, and costs are to come out of P’s Estate, then Detailed Assessment must follow. The Queen’s Bench has seen increasing levels of requests from practitioners for Leave to dispense with Detailed Assessment at the conclusion of litigation concerning P. Usually Solicitors post LASPO i.e. the 1st April 2013 are seeking to recover:

Solicitor/Client Costs

A shortfall in costs recovered, either: o Profit costs o A non-recoverable success fee o ATE premium

The Rules require that costs of P must be assessed except in the very limited circumstances set out at CPR 46.4(3) and (5) and the Practice Direction to Part 46. CPR 46.4(3) states (3) The court need not order detailed assessment of costs in the circumstances set out in paragraph (5) or in Practice Direction 46. CPR 46.4(5) states (5) Where the costs payable comprise only the success fee claimed by the child’s or protected party’s legal representative under a conditional fee agreement or the balance of any payment under a damages-based agreement, the court may direct that— (a) the assessment procedure referred to in rule 46.10 and paragraph 6 of Practice Direction 46 shall not apply; and (b) such costs be assessed summarily.

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(This rule applies to a counterclaim by or on behalf of a child or protected party by virtue of rule 20.3.)

The Practice Direction, states (Costs where money is payable by or to a child or protected party: rule 46.4): 2.1 The circumstances in which the court need not order the detailed assessment of costs under rule 46.4(2) are as follows –

(a) where there is no need to do so to protect the interests of the child or protected party or their estate;

(b) where another party has agreed to pay a specified sum in respect of the costs of the child or protected party and the legal representative acting for the child or protected party has waived the right to claim further costs;

(c) where the court has decided the costs payable to the child or protected party by way of summary assessment and the legal representative acting for the child or protected party has waived the right to claim further costs;

(d) where an insurer or other person is liable to discharge the costs which the child or protected party would otherwise be liable to pay to the legal representative and the court is satisfied that the insurer or other person is financially able to discharge those costs; and

(e) where the court has given a direction for summary assessment pursuant to rule 46.4(5). If the solicitor is instructed in (say) a Road Traffic Accident case and they are content to take what the Defendant pays for your costs, without deduction from P’s damages, then you may settle with a waiver as to further costs. However, if you wish to retain any costs (such as a Success Fee post-LASPO, or an ATE Premium to insure a CFA-funded case) you MUST submit them for Detailed Assessment in the usual way unless you can fit within one of the above exceptions. Generally these exceptions are not workable in higher value claims, for the simple reason that in order to Assess a Success Fee, the Court has to form a view about the base costs (both as to Hourly Rate but also time spent/work done) and about the level of Success Fee set (and hence the Risk Assessment). Thus, in a larger or more complicated case the work involved would take this outside the scope of Summary Assessment. The view taken by the SCCO is that it is safe to dispense with Detailed Assessment if the only claim that the Solicitor is making is the modest cost of an ATE premium (less than £10,000.00) which is not recoverable inter partes post LASPO otherwise the norm is to refer the case to the SCCO. Link to CPR 46.4: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-46-costs-special-cases#46.4

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Link to Practice Direction: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-46-costs-special-cases/practice-direction-46-costs-special-cases#2.1 How does this affect a Deputy who is not conducting P’s litigation? Sometimes the Deputy has not even been consulted or asked if they have any concerns. More generally the Deputy may work or be in partnership with P’s litigation solicitor. The SCCO has devised some directions for these types of Detailed Assessment which are normally carried out on paper. The Directions allow for the following:

Giving notice of the application to any appointed Deputy.

Filing copies of the first General Order of the Court of Protection together with any subsequent Orders or Authorities relating to the claim (where appropriate).

Filing an Opinion from an independent Costs Lawyer or Costs Counsel on the issue of the recoverable shortfall together with a copy of all instructions to the Costs lawyer/Costs counsel.

Lodging the relevant underlying papers at the SCCO for the Master to whom the case is allocated.

Where the payment of a success fee is in issue those papers will include: the conditional fee agreement/s, the risk assessment/s and any attendance notes relevant to the issue of the risk undertaken by solicitors at the time the CFA was entered into.

Where the costs of an ATE premium is the issue the papers may include: the insurance certificate, a copy of the policy, any risk assessment, the attendance notes recording the steps taken to obtain a premium at a reasonable price and the advice given to the litigation friend about the policy and the need to take it out.

The lodging of the bill of Costs or any breakdown of costs which formed the basis of the negotiations between the parties. See NJL v PTE [2018] EWHC 3570 (QB), in which it was ruled in the High Court that the District Judge hearing the matter had failed to consider the risks that a Claimant Solicitor should have taken into account when entering into a conditional fee agreement (CFA) and so was wrong to award a 65% success fee. Instead, the fee awarded by Mr Justice Martin Spencer (with Master Leonard sitting as an Assessor) was 12.5%. Even on the Indemnity Basis, which does not apply (see MCA below) costs have to be reasonably incurred and reasonable in amount. Post-LASPO you are unlikely to have a Party and Party assessment of the Success Fee but NJL v PTE is a good example of how the Court is likely to approach the question of a Success Fee on behalf of a Protected Party, in discharging its duty to ensure that the interests of that party are safeguarded.

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Link to NJL v PTE: https://www.bailii.org/ew/cases/EWHC/QB/2018/3570.html Also see Nicky Herbert v HH Law Limited [1919] EWCA Civ 527 where the Court of Appeal ruled on inter alia informed consent. Unlike NJL v PTE the case of Herbert v HH Law Limited did not involve a Protected Party, but the principles it lays down are of equal relevance in such cases. In particular, the Court referred to the Solicitors’ wish to rely upon CPR 46.9(3) as to whether costs should be presumed to have been reasonably incurred if they were incurred with the express or implied approval of the client and to be reasonable in amount if their amount was expressly or impliedly approved by the client, but to have been unreasonably incurred if they are of an unusual nature or amount; and if the solicitor did not tell the client that as a result the costs might not be recovered from the other party. The Court held that: “If the solicitor wishes to rebut the challenge by relying on the presumption in CPR 46.9(3) (a) or (b), the burden lies on the solicitor to show that the pre-condition of the presumption, informed approval, is satisfied. Once the solicitor has adduced evidence to show that the client gave informed consent, the evidential burden will move to the client to show why, as a result of having been given insufficiently clear or accurate or comprehensive information by the solicitor or for some other reason, there was no consent or it was not informed consent. The overall burden of showing that informed consent was given remains on the solicitor.”

That was on a Solicitor/Client Assessment on the Indemnity Basis; if the Court is looking at these issues on the Standard Basis (see above) then the issue of consent will be scrutinised equally if not more carefully and the fact that the Litigation Friend may have been content to sign up to a 100% Success Fee and a substantial ATE premium, does not mean that the Court will not look at these items very carefully in order to allow only what is reasonable out of the Protected Party’s damages award. Link to Herbert v HH Law Limited: https://www.bailii.org/ew/cases/EWCA/Civ/2019/527.html Link to CPR Part 46.9: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-46-costs-special-cases#46.9 Basis of Assessment Traditionally, prior to the MCA coming into force, the majority of COP costs were assessed on the indemnity basis. After the MCA was enacted costs are now assessed on the standard basis. In those circumstances, CPR Rule 44.3(2) applies. “Where the amount of costs is to be assessed on the standard basis, the Court will: (a) only allow costs which are proportionate to the matters in issue; Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

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(b) resolve any doubt which it may have as to whether costs were reasonably incurred or reasonable and proportionate in favour of the paying party”. The factors which the Court takes into account in assessing those costs are set out in Rule 44.4, the “The Seven Pillars of Wisdom”. Assessing costs on the standard basis makes a significant difference to recovery by the Deputy as issues of proportionality are imported into COP costs and any DOUBT as to whether the costs are reasonable, means they come out of the Bill (opposite to the Indemnity Basis). This difference still does not appear to be understood by some Deputies or practitioners. Link to CPR Part 44: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-44-general-rules-about-costs#rule44.3 Level of Detail in your Bill Given 44.3(2) (b) the adage “If in doubt, it comes out” is often used. Hence, whilst your Bill should not be prolix, an item in Documents saying “Attendance on [date] 6 hours – see Attendance Note for details” is doing nothing to assist the Costs Officer in determining whether those 6 hours were reasonable or not (nor is it likely to persuade the Costs Officer to allow anything for drafting the Bill). Give a short but helpful explanation of what you did, particularly if you did anything out of the ordinary. Once a Costs Officer has disallowed an item you have an uphill battle to reinstate it: get your Bill set out properly at the outset and you will maximise your chance of recovering something. Post – Jackson Rule 47.19 - see link above. Cost Practice Direction at CPD Part 47 Sections 17-18 – see link above. Note 17.2(2) is presently out of step with form N258B: 17.2(2) “The relevant papers in support of the bill as described in paragraph 13.12 must only be lodged if requested by a Costs Officer” Form N258B requires “the relevant papers in support of the bill (SCCO/PRFD Assessments only)”

See the SCCO Guide October 2018 paragraph 27.5; link to the Guide: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/430874/senior-courts-costs-office-guide.pdf Proportionality Rule 44.4(5) CPR

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“Costs incurred are proportionate if, they bear a reasonable relationship to:

(a) the sums in issue in the proceedings; (b) the value of any non-monetary relief in issue in the proceedings; (c) the complexity of the litigation; (d) any additional work generated by the conduct of the paying party; and (e) any wider factors involved in the proceedings, such as reputation or public importance”.

How will this work in practice in relation to COP cases? See CPR Rule 44.3(2)” Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred”

What is a “reasonable relationship”?

The balance between proportionality to the sums in issue and the complexity of the work Para 5.

Importance of the case and the financial position of the parties, CPR Rule 1.1

Proportionality and public importance

Arbitrariness in the eyes of the Assessor

Uncertainty No Practice Direction or Higher Court authority to assist. Other Jackson reforms

Cost Budgeting/costs management. Do not feature in COP work

Summary Assessment

Electronic Bill. No relevance to COP work yet! .See PD 47 para 5.1 (a) relates to Part 7 multi track claims only.

Specific Issues in COP Cases Often bills lodged do not address either the value of the estate of P, or the annual income of P. It is important that the Court is provided with a short summary setting out the background and history of each case (together with the work that has actually been carried out and which is the subject of the bill). Equally it is important to provide an up to date value of the estate, together with details of the annual income received. Estimates: The new form OPG105. The 20% rule. See link above. What are the SCCO going to use the information for? Is it working?

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What if P’s circumstances change? The key is, keep the Court informed, and if you know an estimate has been exceeded, you MUST have a good explanation, or you will not recover the excess. Guideline Hourly Rates: Post – Jackson GHR’s were meant to be set by the CJC. The sub committee chaired by Foskett J reported in 2014. His report did not find favour with the LCJ and 2010 rates still prevail. Anecdotal evidence suggests that, if anything, they may be on the HIGH side. Can you recover more than GHR? Case Law Firstly, a case which is not in the Court of Protection but is persuasive and apt to be followed on hourly rates G v Kingston upon Hull City Council 9KH 02927 – HHJ Jeremy Richardson QC http://www.gwslaw.co.uk/wp-content/uploads/2012/07/G-v-Kingston-Upon-Hull-City-Council-Rapid-Solicitors.pdf At para 52 the Court states: "In terms of experience, whilst there may well be situations where, as [the Receiving Party] put it, an unqualified but very experienced individual could justify an hourly rate approaching - or possibly even equalling - the rate for a qualified fee earner, such situations are in our view likely to be relatively infrequent. We agree with [the Paying Party] that a qualification as a solicitor, barrister or legal executive is a significant and important matter. It is not only a qualification of which those who achieve it may be justifiably proud. It is a mark that the individual concerned has achieved a certain standard recognised by his or her professional body. They are subject to that body's disciplinary procedures. Solicitors have a status as officers of the Court. It is also not without significance that such individuals must satisfy further requirements in terms of ongoing training, CPD points and the like, in order to be able to continue in practice. There is a value to all of that which ought to be reflected in the hourly rate. We anticipate that no doubt informs the thinking behind the classification of grades in the Guidelines."

Relevant cases in the Court of Protection: In the matter of Trudy Samler - SCCO Master O’Hare In the matter of Michael Ashton, 31 July 2006 – Master O’Hare http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Costs/2006/90060.html&query=title:(Ashton) In the matter of Louise Smith and Others, 23 October 2007 – Master Haworth http://www.bailii.org/ew/cases/EWHC/Costs/2007/90088.html

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Louise Smith, para 55: “Guideline rates are broad approximations only and a broad average of rates within localities to which they relate. The fact that general management charges are “a steady stream of work” which should, in some way, affect the recoverable hourly rate is, in my judgment, wrong”. In the memorandum relating to the Diggines decision of Master O’Hare dated 25 January 2001, it was said: “The guideline rate published by the SCCO … the rate is not conclusive, it is just a starting point. However, it is fair to accept this is as the reasonable rate unless there is good reason to depart from it”. What departures should there be? Fee earners in COP work, particularly general management, vary enormously. Many are suitably qualified non-solicitors who undertake the bulk of the day to day work, often experiencing accounts or day to day management. Should these be Grade C, D or, depending on experience, should there be even Grade E or F? In the matter of Yazid Yahiaoui 17th January 2014 Master Haworth Para 28:

“In my judgment, there has to be some consistency in relation to the hourly rates charged by solicitors in general management work in Court of Protection matters. Consequently, I can see no reason to depart from my earlier judgment in Smith that the guideline rates published by the SCCO, and last updated in 2010 with the approval of the Master of the Rolls, are anything other than reasonable rates unless there is good reason to depart from them.

However, the question of the appropriate hourly rate for the relevant fee earner remains a matter for the Costs Officer Assessing the Bill. In my judgment, that means that in appropriate cases where work is being carried out either as a team or by an individual that spans work that would normally be dealt with a by a Grade B, C or D fee earner, a blended or enhanced rate, may be appropriate.

I say this with the caveat that in relation to work of a non-legal description, for example advice given in buying a car or booking a holiday, the starting point for any blended rate may well be less than the Grade D guideline rate.”

See also In the matter of Connor Kirby 25th October 2013 Master Haworth

2010 Guideline rates still apply (as at the date at the foot of this document). Link to 2010 GHR: https://www.gov.uk/guidance/solicitors-guideline-hourly-rates

Electronic Payments

See In the matter of Connor Kirby 25th October 2013 Master Haworth paragraphs 43/45

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“In my judgement, a significant number of the procedures referred to in paragraph 41 do not require anything approaching the level of a grade C fee earner.

To my mind a significant amount of the work required to make these payments requires no more than elementary book-keeping. Performing these procedures is not legal work; it is work which is part of the solicitor’s overhead for which he is remunerated at his appropriate hourly rate.

This applies, for example, to reviewing the account to see if monies are available, inputting the data, completing forms that may or may not be required for the P’s bank and so forth. They may be matters insisted upon by the bank or the insurers but that in itself does not make the case for a Grade C fee earner

These operations do not require a grade C fee earner’s expertise. To my mind, they do not even require a grade D fee earner’s expertise but are simply part of the solicitor’s overhead and must be subsumed in his hourly rate.

I accept that one of the procedures is the decision by the Deputy about whether to make the relevant payment and to authorise it. In that regard the buck stops with him or her, just as it would if he were required to sign a cheque for the relevant invoice. Nonetheless, in my judgement that is not a six-minute unit of time.

Accordingly, applying a broad-brush approach to these items, in my judgment, save in exceptional circumstances, the amount claimed for the totality of the BACS payment, inclusive of time spent by the Deputy or his authorised fee earner should be no more than a claim for a three-minute unit by a grade D fee earner.

Although not cited by Mr Richings in argument I am reinforced in my conclusions by the decision of Master O’Hare in the case of Jamie Walker SCCO 9th November 2001 when a similar issue arose concerning payment of routine bills and the time charge for an accompanying letter. At paragraph 11 he said:

“In my judgement, an allowance of 3 minutes per letter is more than sufficient”

Ongoing Litigation/Interim Payments.

Must be reasonable. If assisting the litigation solicitor re an interim payment application the costs should be recovered in the litigation and not sought as GMC.

The issue of inter fee earner communication between the deputy and other fee earners or firms of solicitors has been dealt with in several judgments including Leighanne Radcliffe.

Paragraph 21 of the judgment states “In my judgement it is sometimes, but only rarely, appropriate for claims for costs to be made in respect of discussions between fee earners…”

The onus is on solicitors to justify the inclusion of inter fee earner work. The principle is that this may include “an unexpected turn of events where the senior solicitor’s extra experience and weight would be an essential reinforcement”.

No examples are given in the judgment, but it is a fairly stringent test.

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Experience of Costs Officers

Whilst Costs Officers may not have practical experience of managing patients’ affairs, they assess thousands of bills containing a wide range of Court of Protection matters and have experience in looking a huge range of different Court of Protection issues. Although welfare costs are not allowable in principle, Costs Officers are generally pragmatic in allowing an element of welfare work where it overlaps financial issues and the work may have financial consequences. It is incumbent upon the solicitor to explain in his bill why the work carried out may have financial implications. The real problem comes where solicitors claim wholesale welfare costs in their bill, without a specific order from the court. In exceptional cases there should be an application to appoint a welfare deputy or at least an application to the court for an order to cover the welfare costs. The Future: One new area for Deputies may be “missing persons” under the Guardianship (Missing Persons) Act 2017 coming into force in October 2019 Part 57 CPR. The proposal is to allow the estates of missing persons to be administered in much the same way as P. It is being proposed that the Civil Procedure Rules are amended to provide that the court may order the detailed assessment of the costs charged by professional guardians, by a costs officer in the SCCO. Based on the wording of the relevant Court of Protection rule (19.13), the proposed wording for the new civil procedure rule would allow for a professional guardian to be paid:

a fixed amount; or

be paid at a specified rate

and that any amount permitted by the court would constitute a debt due from the missing person’s estate and that the court may order a detailed assessment of the remuneration by a costs officer in accordance with rule 44.6(1) (b).

Amendments will be needed to Practice Direction 57C and the SCCO Guide to give effect to the rule reform.

JJ/PH updated June 2019