At Paragon Costs Solutions, our volume of Court of Protection work is steadily increasing and we currently prepare annual bills for over 50 Deputyship matters. The values of the Bills in these matters are substantial and we frequently prepare Bills in excess of £50,000. We have developed a good understanding of how best to draft the Bill of Costs in order to achieve the highest possible recovery. Here is a brief consideration of the relevant rules and case law which apply to costs in the COP, as well as some general guidance on how to maintain a Deputyship file for optimal recovery.
Who pays the costs?
The Court of Protection Rules 2007 have established specific costs rules for matters conducted in the COP. There are two general rules and one exception to consider. Under r156 the costs of proceedings concerning P’s property and affairs shall be paid by P or charged to his estate, whilst r157 states that there will be no order as to costs where proceedings concern P’s personal welfare.
The Court does have the power to depart from these two general rules “if the circumstances so justify” and r159 sets out all of the circumstances that the Court will have regard to when making this decision. The three main considerations are the conduct of the parties (with a list of factors outlined in r159(2)); whether a party has succeeded on part of his case, even if he has not been wholly successful; and the role of any public body involved in the proceedings.
A good example of this departure was seen in VA & 8 others v Hertfordshire Partnership NHS FT & others [2011] EWHC 3542 COP. In this case the COP heard applications from 9 residents at a specialist autism unit (SRS) who opposed the commissioning authorities' desire to move them to different placements. The Judge agreed with the applicants and various experts including those employed by SRS, that remaining at SRS was in their best interests. As proceedings concerned their personal welfare the general rule is no order as to costs. However the Judge awarded the applicants half of their costs under the r 159 departure. The respondents had been reluctant to provide relevant information pre-action, causing an increase in the applicants' costs when they had to commence proceedings.
When considering whether a party’s actions may cause them to become liable for costs under r 159 departure, the following factors are relevant: ignorance of the law; a lack of impartiality; conduct causing a delay in the matter and misleading the Court.
What rates do I apply for general management costs?
Frequently the work undertaken by fee earners and the Deputy throughout the general management year will only constitute routine and very familiar matters. This has lead to some doubt over the appropriate rate at which such work should be charged and allowed in the COP. The SCCO has produced guideline hourly rates for us to follow, but are they too high for such routine matters? Alternatively, is there an argument that certain complex matters could actually justify a higher hourly rate than suggested in the guidelines?
These issues have been considered by Master Haworth in the matter of Smith (& Others) [2007] EWHC 90988 (Costs). In this case the Appellants were seeking to recover costs in line with the Guidelines, whilst the Defendants challenged this by suggesting that the work was so routine as to only attract a rate below the Guidelines.
Interestingly, not only did the Costs Judge reject the Defendant's submissions by acknowledging that routine work undertaken on COP matters was on a par with routine work carried out in other legal professions where the Guideline hourly rates were upheld, but he also went as far as to assert that such routine work could become more demanding due to the specific circumstances of the case. The management of the Patient's affairs often require the Deputy and associated parties to work with a higher level of responsibility and expertise as the Patient does not have the capacity to make decisions. Therefore each matter undertaken in a COP case, whether complex or routine, will have scope to demand a higher standard of work than the equivalent matter in other legal professions.
Following this comparison the Costs Judge concluded that the appropriate rate for any given work undertaken in respect of Court of Protection cases will always be at the Costs Officers' or Costs Judges' discretion, and work which is appropriately complex and difficult to conduct may merit higher rates than the SCCO Guidelines. Therefore it is important for those working on matters in the COP to ensure that the file highlights work which is noticeably complex and difficult if they intend to benefit from this discretion.
Is all of your time recoverable in the Court of Protection?
The earlier matter of Leighanne Radcliffe on 20th December 2004 addressed the recoverability of specific items in the COP, and again demonstrates the importance of detail within the file notes when looking for a good rate of costs recovery. On appeal before Master O’Hare the Deputy challenged the assessor’s decision to disallow time for inter-fee earner communications and enclosure letters. The appeal was dismissed and Master O’Hare ruled that enclosure letters would be allowed at 3 minute units except on non-routine or justified occasions where 6 minute units would be applied. Inter-fee earner communications were disallowed as ‘inter-office liaison which has not added anything of value to the legal proceedings', and which was part of the irrecoverable overhead of the firm. However Master O'Hare did accept that such discussions may be required in "an unexpected turn of events where the senior solicitor's extra experience and weight would be an essential reinforcement”. On these occasions the time could be recoverable, presumably as it would be adding value to the legal proceedings by advancing P's affairs.
The impact of Leighanne Radcliffe is that routine letters, such as those that enclose payments for everyday items which form a considerable part of the Deputy's duties, may be limited to 3 minute units. However a detailed explanation of why an enclosed letter is more complicated / less routine could enable recovery of the full 6 minutes that it has been charged at on the time keeping system (as very few firms have systems which allow 3 minute units). Furthermore, time will only be recovered for inter-fee earner communications where the file provides a description of how this has advanced P’s case and added value to the proceedings. Once again, a detailed attendance note by the Deputy or solicitor is vital evidence for the Costs Draftsman when adding this time into the Bill.
What are the practical implications for fee earners working on Court of Protection matters?
One overarching conclusion can be drawn from the COP rulings described above; the more detailed your Bill of Costs is, the more likely it is that the Costs Officer or Judge will apply the Court Rules and their discretion in your favour. It is important to remember that Provisional Assessment in the SCCO is made on a paper basis where the Cost Officer compares the Bill with a complete file of the papers and assesses each item for reasonableness. Therefore the easier it is for them to identify each item, the higher your chance of recovering the associated costs. This isn't simply an exercise of ticking off routine letters claimed at guideline rates. The Officer or Judge has the power to dismiss or deduct unreasonable time, but he can also allow large volumes of time for seemingly routine matters providing it is justified in the Bill. He can also apply his discretion to allow hourly rates in excess of the SCCO guidelines where the complexity and nature of the work justifies such an increase.
In order to benefit from these powers, it is essential that fee earners provide detailed and accurate attendance notes which can be transferred by the Costs Draftsman in to the Bill of Costs. The file should state that a matter is unusually complex in nature or that the medical report for consideration is significant in length; it should detail not only that a drafted document has been updated or amended but also how and why such amendments have been made; it should explain that a long telephone call with the Patient was difficult due to his capacity but that it did ultimately progress a general management matter.
By Richie Rees
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