Q: As a Solicitor Deputy, in relation to Court of Protection costs, am I subject to recovering fixed costs for the work that I do annually in managing my protected client’s (P’s) affairs?
A: No and Yes! Pursuant to Practice Direction 19B(9), the annual (fixed) management fee for dealing with property and affairs, payable on the anniversary of the court order, is as follows;
(a) for the first year £1500 (plus VAT)
(b) for the second year and subsequent years £1185 (plus VAT)
Solicitor Deputies can, though, if P’s net assets exceed £16,000, ask for their court of protection costs to be assessed. It is commonly the case that a solicitor deputy will find that his/her fees will exceed the fixed costs limit and therefore will choose to go down the route of having a bill of costs prepared and proceeding to assessment of those costs.
However, if P’s net estate does not exceed £16,000, then fixed costs equating to a sum of 4.5% of P’s net assets as they stand at the anniversary date of deputyship order, are the maximum allowable costs that the solicitor deputy can take as an annual management fee during that year. For an estate not exceeding £16,000 this means a maximum charge of £720 plus VAT.
Q: What rates should be applied when drafting Bills of Costs for the annual general management bill to be submitted for assessment (assuming that the Solicitor Deputy is choosing not to take fixed costs)?
A: Since the matter of Louise Smith & Others 2007 and more recently that of Yazid Yahiaoui 2014, the court has continued to rely on the 2010 SCCO guideline rates. In addition, Master Haworth, in Smith, held that difficult and complex areas of law arising in a matter could merit rates in excess of guideline figures for Grade A Fee earners. In Yahiaoui, Master Haworth put forward the idea of ‘a blended or enhanced rate’ for work that was being carried out either as a team or by an individual but ‘that spans work that would normally be dealt with by a Grade B,C or D fee earner.’
Undoubtedly, however, if the costs officer believes that any work is being carried out by a fee earner of too high a grade for the work involved, then a reduction will be made from the rates being claimed. By its very nature, managing the estate of a protected person will at times involve some very routine, administrative work and if this work is charged out at a grade B fee earner rate (because the grade B has been carrying out all the management work throughout the year) expect to see the rate reduced for such routine work to that of a grade D fee earner. Too much routine work being charged out at grade B rate and expect perhaps to see the costs officer reducing rates on rather more than just the routine work aspects of the bill! Delegate routine matters to the appropriate grade of fee earner ie grade D and charge out for that element of the work at the appropriate rate.
Q: Have you any suggestions for ensuring that as a Solicitor Deputy, I recover the maximum possible percentage of my management costs when they are submitted for assessment?
1) 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. More than ever with CoP costs, it is imperative that little, if any, time/work is left to be estimated when drafting the bill. Never lose sight of the fact that your charges come out of P’s estate and the Deputy’s primary purpose is to protect the interests of P, including justifying the costs incurred in managing his/her affairs.
2) 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. In the matter of Leighanne Radcliffe 2004, Master O’Hare disallowed any time spent on inter-fee earner discussions and famously said;
‘If the senior fee earner needs to be informed of some aspect of a matter, he should simply read the relevant attendance note when the file is sent to him.’
The exception to this was to be, where an unexpected turn of events had occurred and ‘the senior solicitor’s extra experience and weight would be an essential reinforcement.’
3) 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 justifying the enhanced hourly rates or additional time claimed, would be an advisable addition.
Q : Is there any form of Case Management in the Court of Protection?
A : Not at the time of writing. However, a pilot case management scheme is scheduled to start as of 1st September 2016.
The Pilot scheme sets out 3 pathways for CoP proceedings;
- A property and affairs pathway,
- A health and welfare pathway,
- A hybrid pathway for cases that have elements of both property and health.
The pilot Practice Direction will place an obligation on applicants to provide improved analysis of the issues at the start of a case, allowing for more robust case management decisions to be taken at the outset and all issues to be identified at the earliest opportunity in proceedings.
R Costings regularly submit bills for provisional assessment in the Court of Protection and have significant knowledge and experience of what the SCCO allow when assessing bills. If you are interested in finding out more about how R Costings can help you deal with your costs in Court of Protection matters then please call us on 01480 463499 or email me on email@example.com