From 1 November 2022 to 28 April 2023, a pilot was in place for the use of electronic bills in Court of Protection (COP) claims. The trial was a marked success, resulting in the continuation of these bills being accepted by the Senior Courts Costs Office (SCCO) moving forwards.
During the pilot, 30-40% of Court of Protection bills were submitted in the new electronic format which saw the bills being efficiently assessed and resulting in the permittance of bills to be submitted in this format moving forwards.
Main differences between the electronic and ‘paper’ bills
The primary difference between the formats of the bill of costs is the new format being a self-calculating Excel spreadsheet in contrast with the Microsoft Word format of the traditional bill. The bill itself is also now divided into 14 sections however, this does include a section for the Front Sheet, Certificate of Accuracy, summary of the assessed bill and details for requesting a Final Costs Certificate, which may not have formed part of the original Bill of Costs and may typically be submitted alongside the original bill or after the bill has been assessed.
The benefits of these changes is that it streamlines all processes pertaining to the assessment of the COP bill. The Costs Officer is able to make adjustments to the bill electronically, which will automatically update the recalculation tab of the bill and will also populate the details of the Final Costs Certificate, removing the time spent recalculating the assessed bill and significantly reducing the possibility of a disagreement with the figures calculated by the Costs Officer. It also reduces issues with the intentions of the Costs Officer when considering reductions applied, as each reduction will be clearly marked with justification provided.
Changes to the data available to the Costs Officer
However, it is worth nothing that the E-Bill of Costs also provides additional information to the Costs Officer at the time of the assessment that typically would not be available. Alongside the narrative, it is now a requirement of the E-Bill for the recent OPG105 figures to be provided alongside the value and breakdown of the patient’s assets in non-welfare matters. Confirmation of the value and breakdown of the patient’s assets enables the Costs Officer to identify whether the costs incurred are proportionate to the assets held and also to confirm that sufficient assets are held for the assessment to take place.
Providing OPG figures during an assessment is nothing new, as a copy of the OPG105 form should be provided alongside the bill when filing with the SCCO. However, this figure will be more readily available to the Costs Officer and will make it easier for the Costs Officer to identify when costs exceed the estimated costs for this period, making it imperative for the estimated sums in the OPG105 form to be accurate otherwise, if exceeding the estimate by 20% or more, an explanation should be provided to justify why costs have increased to the level claimed.
In addition to the above changes, the Costs Officer will be able to examine significantly greater data points than previously able. While on a paper bill, the Costs Officer was able to consider each entry on a line-by-line basis, the E-Bill portrays data such as the costs incurred broken down by activity, grade of fee earner and party, in addition to the line-by-line data. This will assist the Costs Officer in identifying instances where either there is scope for delegation to a lower grade of fee earner, or whether contact with a particular party was too high. While the same information can be extracted from the paper version of the Bill of Costs, this information being much more readily available will
assist the Costs Officer not only with identifying such issues, but also with awarding a reasonable alternate figure.
Purposes of the E-Bill
Perhaps the elephant in the room that has not been addressed is the purpose for the E-Bill and why it may have a significant impact to Court of Protection teams across the country.
Currently, the SCCO has a monumental backlog when it comes to the assessment of COP bills, with bills now taking around 12-14 months to be returned following submission. The E-Bill’s efficiency should, hopefully, reduce this significant back-log and result in assessments being returned much sooner. While Court of Protection Practice Direction 19B permits Deputies to bill up to 75% of their anticipated costs for general management, the current delays are currently having a detrimental impact on the cashflow and logistics of deputyship teams having to manage the assessment of their costs over 13 months after they have been incurred. It is hoped that the E-Bill will lessen the delay and, by association, the burden on COP teams.
A further benefit of the E-Bill is the ability for cells to be colour coded. The majority of the cells in the E-Bill have a white background. Cells containing formulae which are not to be overwritten have a purple background whereas cells for use by the Costs Officer have a blue background. Changes made by the Costs Officer during the assessment will highlight the relevant cells in yellow for ease of reference.
Should the bill be reconsidered or referred to a judge following the original assessment, further amendments will be made in red. The version of the bill will also be re-saved to enable the costs draftsman to compare and contrast the different versions of the bill.
In order to assist the Court, costs draftsman are required to correctly name their electronic Bill of Costs. The current convention is for the surname of the patient, followed by either the deputyship year or authority type and followed by the type of document, all in capitals.
For example, a bill for Mr James in the 2020-21 deputyship year should be named JAMES – 2020-2021 - BILL. A bill for Mr Martin up to the appointment of the deputy should be named MARTIN -APPOINTMENT OF NEW DEPUTY – BILL.
Updates to the E-Bill
Another benefit to the E-Bill is the ability of the COP or SCCO to provide updates to the COP-E bill. This will enable additional data to be portrayed should it be beneficial to the Court and the self-updating nature of the spreadsheet will result in minimal impact to the drafting of the document.
Since the commencement of the pilot in November 2022. The E-Bill has been updated twice from version 1.0 to 2.0 in July 2023 and then from 2.0 to 2.1 in August 2023. The changes may be additional features, as seen when updated from version 1.0 to 2.0, but also may be small updates and patches to errors identified, as seen in the changes from 2.0 to 2.1.
What hasn’t changed?
While the format of the bill has changed significantly, it will have minimal impact on the way that the bill is prepared. Only minor changes relate to the information provided and this is that each
entry will now need to be allocated a corresponding activity to enable the spreadsheet to identify the task undertaken. These are primarily self-explanatory and are commonplace in electronic inter-partes bills, with the most common activities being letters out, telephone calls or ‘Plan, Prepare, Draft, Review’. New activities include Arranging electronic/cheque payments or Bill of Costs. Modern bill drafting software will be able to identify the vast majority of these automatically, minimising any additional time required by the costs draftsman. Therefore, it is unlikely that any additional bill drafting time will be permitted for the preparation of the E-Bill of Costs.
When filing the E-Bill with the SCCO, it is strongly recommended that documents are uploaded to the SCCO document upload centre as a single PDF with a chronological index showing the dates of the documents. However, the SCCO will continue to accept documents being sent in the usual manner for now.
To summarise, the new COP-E bill seems to achieve exactly what it has set out to achieve. It has streamlined the assessment process for both the COP practitioner and the Costs Officer while minimising any real impact to the preparation of the bill by the costs draftsman.
While it remains to be seen the impact the additional data available to Costs Officers will have upon recoveries however, hopefully it transpires to be a small price to pay if it reduces the current significant court backlog and results in payment of costs at a much sooner stage for COP practitioners.