Bills of Costs are submitted to the SCCO annually in order for the Court to consider the costs incurred by a Professional Deputy appointed to handle the property and finances of a person deemed incapable of doing so themselves under the Mental Capacity Act (MCA) 2005. The Appointment of a Professional Deputy can occur in many circumstances, ranging from catastrophic brain injury with substantial Damages to manage, to dementia patients with no suitable family to manage the day to day matters.
Following the Appointment of a Professional Deputy, work will be undertaken as is required to efficiently manage the patient's (P's) affairs and the Deputy is entitled to charge the Estate for the work done. In order to protect P (as a protected party under the MCA 2005), the Deputy can either opt to accept fixed costs for the years’ work or seek an assessment of the costs incurred. Where an assessment is sought a detailed Bill of Costs is submitted to the SCCO to determine the reasonable and necessary costs payable out of the estate.
The Court, when assessing costs, will use the CPR as is usual on a standard basis assessment, and they will often also cite relevant case law for reductions they apply. This article seeks to examine and refresh on those leading cases, what the findings were and what the impact is for the lawyers whose costs are reduced.
Garylee Grimsley (1998)
This was an appeal against the Taxing Officer’s assessment of the annual general management Bill, the Taxing Master (O’Hare) sets out the reasoning behind disallowance of research. Mr O’Hare makes reference to the case of R v Legal Aid Board Ex Parte Bruce [1991] 1 WLR 1231 where Lord Donalson commented, of lawyers, that '…knowledge of the law, however acquired or recalled, is their stock in trade […] In so far as expense is involved in adding to or replenishing this stock in trade, it is an overhead charge…’
Master O’Hare also addresses inter office communications, with reference to SCCO Practice Direction No.2 of 1992 para 1.8, and said that memos which do not add value should be disallowed and further commented that claiming a memo in as well as out was patently wrong.
Trudy Samler
The case of Trudy Samler examines the difficult concept of the level of costs incurred at the instigation of the Protected Party and whether the Deputy should be expected to be paid in any event. Master O’Hare expressed that the solicitors have a duty to find a way of avoiding such expense. Master O'Hare also considered the cost of quarterly visits to P and indicated that annual visits would be considered easy to recover but that further subsequent visits would need to be justified.
Jamie Walker (2001)
In this case Master O’Hare considers the costs of routine correspondence which deals with payment of bills such as utilities and the like. In the first instance the Costs Officer disallowed the numerous 6 minute (routine) entries for payment of bills as an unreasonable expense. Master O'Hare was provided with submissions which set out the surrounding work involved and argued that the 6 minute units claimed were reasonably chargeable. Master O'Hare concluded that a 3 minute allowance of time for these enclosure letters was reasonable.
Leighanne Radcliffe (2004)
In this case Costs Officer Sainthouse applied Master O’Hare’s decisions which were made in the Garylee Grimsley case whereby communications between fee earners were disallowed as they had not added anything to the value of the legal services provided.
This case also serves to reiterate the decision made by Master O’Hare in the Jamie Walker case in terms of 3 minute charges for routine cover letters. It is noted that time spent checking an invoice, arranging payment and preparing the cover letter/cheque is non-fee earner work and therefore a minimal 3 minutes is allowed for the whole process.
These cases are helpful in setting out the Court’s approach to CoP work. It is also worth noting that it is unusual to persuade the Court to depart from Guideline Hourly Rates in these cases, unless they are considered exceptional. This is usually with reference to the case of Louise Smith and Others (2007).
Paragon Costs have a wealth of experience in dealing with a variety of Court of Protection cases therefore, should you require any assistance, please don’t hesitate to contact Claire Tomlin on 0117 930 9529 or ctomlin@paragoncosts.com.
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