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Can Non-Solicitor Deputies Charge Solicitor Rates? (Public Guardian v Riddle (No 1) & (No2) [2020] EWCOP 41)

View profile for Mark Holloway
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It is clear from the judgments that a non-solicitor deputy is not precluded from charging some form of enhanced rates over the public authority rates. However it is clear that if this enhanced rate is sought it needs to be clearly evidenced, and applied for, when the original order is made. Clear evidence needs to be provided on a general basis to show that the deputy will be offering services over and above those of a public authority and they have the suitable experience and professional obligations. On a specific basis it needs to be shown to be in the best interests of the protected party.

When charging on public authority rates VAT can also be charged to the protected party as well as disbursements for independent visitors, however this also needs to be evidenced and sought in the deputyship order.

Background

The proceedings related to applications made in respect of forty individuals. In thirteen cases the respondent, Andrew Riddle, made a COP1 application for appointment as a property and affairs deputy and applied for specific authority to charge fees at the solicitors’ rate. Mr Riddle also applied for specific authority to charge fees at the solicitors’ rate in six other cases where he is already appointed as a property and affairs deputy.

The applicant, the office of public guardian, made a COP1 application in 21 cases for revocation of Mr Riddles appointment as deputy.

Mr Riddle was the managing director of a firm that offered services to manage the property and financial affairs of adults who lack capacity. Mr Riddle is not a solicitor and does not work under the supervision of a solicitor.

Issues to be decided upon

Following the multiple applications and preliminary hearings the following issues were identified to be decided upon:

  1. Should Mr Riddle be authorised to charge fees at a solicitor rate
  2. If granted, should he be relived of any liability for past charging at that rate without authority
  3. Should his deputy appointments be discharged due to past conduct and the conclusions on charging rates
  4. Should he be appointed as deputy where he has made an application for appointment

Court’s Decision

  1. Should Mr Riddle be authorised to charge fees at a solicitor rate

Senior Judge Hilder agreed, in principle, that it would be appropriate to exercise the Court’s discretion to extend the solicitor’s costs provisions to a non-solicitor deputy where they are subject to professional obligations comparable to those integral to being a solicitor and where the non-solicitor deputy accepts being held to the same standard.

Mr Riddle was not subject to any professional code of ethics and due to his conduct, which fell short of what would be expected by a solicitor, it was found that Mr Riddle did not meet the benchmark to authorise charging solicitors’ rates.

Further when considering each case on an individual basis they were all found to be characterised as not exceptional and therefore again did not meet the benchmark to authorise charging solicitors’ rates.

  1. If granted should he be relived of any liability for past charging at that rate without authority

Mr Riddle charged in excess of the rates he was authorised by the OPG to charge, he was considered to be in full knowledge of what he was doing and therefore he was not relieved of any liability for past charging.

  1. Should his deputy appointments be discharged due to past conduct and the conclusions on charging rates

There were a number of conduct issues raised to include using protected parties’ funds for litigation costs, obtaining commission for funeral plans, passing on banking charges to protected parties, passing on VAT to protected parties where a fixed fee was taken and passing on the fee for an independent visitor to the protected party.

Interestingly the OPG argued that where OPG rates were being charged, VAT should not be added and criticised Mr Riddle for passing VAT on to the protected parties. The judge considered this unduly harsh, as a deputy who was VAT registered would receive less remuneration than a deputy provider who was not VAT registered. Therefore the following guidance was provided:

‘Going forwards, so that there is absolute clarity from the outset, any non-solicitor applicant for deputyship who operates on a basis which involves VAT liability should specifically seek in their deputyship application authority to pass onto the protected person any VAT in respect of deputyship fees at the public authority rate. Specific provision can then be made in the appointment order.’

Mr Riddle had provided statements setting out his reasons for his conduct failings and had either reimbursed the protected parties or had taken steps to reimburse the protected parties. On this basis and on the basis that there was no evidence the protected parties suffered any hardship he was allowed to retain his appointment.

  1. Should he be appointed as deputy where he has made an application for appointment

A further hearing was listed to give Mr Riddle opportunity to restore all of the funds to the estates. If the funds have been restored, the new appointments he was seeking would be decided at the second hearing.

Hearing No.2

Mr Riddle had restored the funds to the estates. The OPG no longer sought revocation of the deputy appointments. A schedule was agreed for supervision by the OPG for Mr Riddle’s appointments and he was appointment as a deputy in the application for 13 new appointments.

The court provided the following further guidance on Mr Riddle’s application to charge fees at another or blended rate:

“The Court’s determination of fees authorisation must be determined in the best interests of the protected person, not the business interests of the potential deputy. Mr. Riddle has not offered any account of services which he would offer over and above what a public authority might be expected to provide.”

The Court, when considering the appropriate award for costs, considered the outcome of the various applications and the most appropriate award in the circumstances was for each party to bear their own costs.

When considering the award for costs the court commented that:

“The Public Guardian should not be constrained from bringing complex and multi-faceted cases to the attention of the court by a fear of costs risks… Any order for costs against the Public Guardian must be clearly based on demonstrable significant failings. I am not satisfied that there were such failings in this matter.”

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