This article was written on the 8th March 2018. Here’s a trivia question for you. What other memorable event happened on that same day? We can almost hear you shouting the answer from your offices. Yes, Lord Justice Jackson’s retirement as Lord Justice of Appeal was effective as of this the 8th March 2018 too.
Jackson will be remembered for many things, but his civil litigation reforms that came into force in April 2013, will be his main legacy. This article focuses on his famous (or infamous, depending on your viewpoint) concept of the test of ‘proportionality’ in respect of legal costs which was introduced by the reforms. The proportionality provisions are contained in CPR 44.3, which provides that the court will only allow costs which are proportionate to the matters in issue and costs which are disproportionate may be disallowed or reduced. This can be the case even if the costs have been reasonably or necessarily incurred as per the Senior Costs Judge Master Gordon-Saker’s decision in BNM v MGM Ltd .
For Court of Protection practitioners, the proportionality test is one aspect of the reforms that has had an impact on an otherwise fairly Jackson free area of practice. The Court of Protection Rules 2017 specifically provides it’s own definition of dealing with a case justly and at a proportionate costs in Rule 1.1 (3) includes the following;
(a) ensuring that it is dealt with expeditiously and fairly;
(b) ensuring that P’s interests and position are properly considered;
(c) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(d) ensuring that the parties are on an equal footing;
(e) saving expense;
(f) allotting to it an appropriate share of the court’s resources, while taking account of the need to allot resources to other cases; and
(g) enforcing compliance with rules, practice directions and orders.
At R Costings we immediately took on board the ‘even if the costs have been reasonably or necessarily incurred’ comment of Gordon-Saker in his judgement in the BNM case. Our thought process was that there was potential for some very heavy percentage drops in recoveries following detailed assessments, unless we worked with our solicitor deputy clients closely to ensure that together we were doing absolutely everything we could to avoid giving the costs judge at an assessment, the opportunity to find reason to disallow items within the bill. We continue to work closely with our clients to ensure that this practice is carried out diligently not only by them, but by us too.
It is imperative for professional deputies to ensure that they adhere to the guidelines laid down in the Office of the Public Guardian’s publication of July 2016, Professional Deputy Costs OPG Guidance). After outlining that a professional deputy is entitled to General Management costs which are;
- Reasonable, and;
- Proportionate to the total value of the client’s estate, the amount of work done and that any work done should be done by the appropriate fee earner
The guidance notes go on to state that;
“Both OPG and the SCCO are clear that any professional deputy who does not follow the published guidance will be expected to explain the reason for their actions and in particular, demonstrate how their actions are in the client’s best interests.”
The guidelines provide an overview of the approach taken by the SCCO when assessing bills and it should go without saying that all fifteen points listed under this section of the OPG Guidance must be followed closely if the bill is going to survive the assessment process as unscathed as possible.
Some of our own tips for ensuring the maximum possible recovery on the annual management bill, provided in a previous COP blog on our website, still remain valid, namely;
- Ensure that your time spent is well documented both with regards to the nature of the work that you have carried out and to the time spent on each aspect of the management work undertaken.
- Don’t engage in inter-fee earner discussions regarding the management of P’s affairs – or at least if you do, then don’t expect to recover the costs incurred in having such discussions.
- If the matter is of a complex nature or otherwise complicated beyond what might normally be expected in matters of general management, then a brief but informative narrative is advisable.
The frustrating part of doing this type of work can be that no matter how closely to the OPG guidelines solicitor deputies adhere, there are now, by virtue of proportionality and the approach outlined in the BNM case, factors that are outside their control, that might still mean that large swathes of the bill are disallowed on assessment. The most obvious factor is that of the value of the protected person’s estate. If the estate has a relatively modest value but has in a particular year been difficult to manage, with a considerable amount of work involved and properly accounted for in the GM bill, then proportionality is likely to bite through no fault of the professional deputy or their costs advisors. We have seen evidence of this on a number of occasions in the years since proportionality became a factor in assessing costs in the Court of Protection.
It is vital that solicitor deputies work closely with their costs draftsmen. Work as a team. That has been our approach over the past few years in particular. Whilst there may be some factors outside both parties control since ‘Jackson’ in 2013, when working to try and ensure that the assessment will see a successful recovery, there are many areas as outlined above where the solicitor deputy and their costs advisors by working together, can still ensure positive results.
The concept and definition of proportionality is still evolving. Jackson LJ, just before he retired, lamented the lack of lack of opportunity so far for the Court of Appeal to give guidance on the matter. He said that there needed to be a ‘cluster of cases’ so that the Court of Appeal could address the topic.
R Costings have a highly skilled Court of Protection team. If you would like our help with your Court of Protection costs work, or perhaps just have queries arising from the topics covered in the blog, please don’t hesitate to contact Kate Benn-Mack or Rebecca Robson at R Costings on 01480 463 499. They will only be too happy to help.