R Costings acted for Ashtons Legal in a recent oral hearing in front of Master Whalan to challenge a number of reductions made on assessment and maintained upon reconsiderations, addressing specifically issues of inconsistencies across assessments. Paul Reason of R Costings represented the Deputy at the hearing in relation to four separate general management bills of costs, with the preparation of costs by senior costs draftsman, Jenny Freeman and challenges overseen by head of the Court of Protection costs team, Kate Benn.
One of the specific challenges related to the inconsistency of the Court’s approach regarding the application of a “Payroll” rate typically awarded at an indiscriminate £95 per hour for work considered to be payroll in nature at assessment. The reduction had been applied to the correctly claimed Grade D guideline hourly rates (GHR) resulting in an automatic significant reduction per unit for time allowed. The second general argument raised related to drafting costs incurred and claimed and an arbitrary percentage application being awarded at assessment against profit costs.
The oral hearing listed was a for a full day to hear the arguments. At the hearing, the hourly rates were reinstated as claimed in accordance with the GHR in respect of all four matters. In respect of the drafting fees claimed, these were accepted as claimed and no percentage application was applied. It was commented that the fees claimed for preparation, were reasonable and what would be expected for the matters in front of the Court.
In addition, the reductions to much of the time at assessment was challenged on the basis that the reductions were not reflective of the level of work required in order to progress general management was considered and an average of 74% of the costs originally disallowed, were allowed at the oral hearing making the hearing well worthwhile.
Master Whalan advised that there would be no written judgment in respect of these matters, and the issues formed part of the reconsiderations, but confirmed that the decisions made would be filtered down to the Costs Officers. Paul Reason was commended in the way in which the hearing had been presented before Master Whalan resulting in the hearing concluding within half a day. Going forward, R Costings will rely on the outcome of these hearings in support of both payroll and costs drafting referring to these specific cases when required.
Gear 2022 relying on Fuseon Ltd, R v Shinners (2020)
The Professional Deputy Forum recently reported on another successful outcome relating to inter-fee earner discussions; we have been long arguing for the recovery of reasonable costs between members of the Court of Protection team on the basis of Fuseon given that in the COP, arguably more so than in other areas, requires additional delegation given the requirement for work to be delegated to the most junior fee earners possible in order to save the P costs. This however still needs careful consideration when preparing costs on the basis that delegation should be to save costs; it therefore follows unlikely that Grade D delegating to another Grade D will be recoverable. The question will still remain as to whether the work is proportionate and reasonable.
Scarff 2022
Another matter heard recently in front of Master Whalan dealt with issues regarding unreasonable reductions and specifically, inter-fee earner discussions. Again, at that hearing additional costs were awarded in respect of the same. This supports the outcome of Gear 2022 recently heard in front of Master Whalan where the application of R (Fuseon) 2021 was accepted as being good law in the COP.
Conclusion and what next?
We are very pleased to have some clarity on the applicable rate for payroll work and removing the arbitrary percentage application for costs drafting allowing a more reasonable consideration of the actual time spent to draft detailed, and often complex, bills of costs.
Since the hearing however, it is disappointing to note that despite confirmation from assessors of the results having been filtered down in respect of Silvestre et al 2022 and Scarff 2022, the assessors have confirmed the decisions are not binding resulting in little to no change on reconsideration. In turn this leaves little option open to Deputies to seek further oral hearings on issues already addressed which only seeks to waste costs and time of the Deputy and draftsman, but more concerningly, the Court who are already pushed to the limits regarding the number of cost assessments.
It is therefore likely the Court will continue to see the number of requests for reconsideration and subsequent appeal hearings grow until fair consideration is made consistently upon assessment as to the costs incurred. It is also worth noting that many of the general management costs in discussion follow a litigation award which already provides for a level of anticipated Deputyship costs annually and the costs almost always fall well within both the estimate and what is considered proportionate against the P’s assets.
Hopefully, the introduction of the COP-E will greatly assist and speed up the post-assessment calculations and challenges and provide more consistency across assessments. Concerns are growing however as to appropriate resources the Court has in relation to assessing electronic bills whilst reviewing full electronic bundles, noting the number of requests we regularly receive for paper files and paper attendance notes which have already been provided in the court directed electronic bundle pdf. format, to make it ‘easier’ for concluding an assessment.
At R Costings, we continue to develop the way in which we prepare Bills of Costs in the COP and strive to work with the SCCO to ensure that the Assessors are provided with everything required before the assessment takes place, and to give as much information at the outset as possible to secure the best possible recovery with on-going attempts to ensure that the turnaround time from filing to assessment and filing of the FCC is as short as possible.
For any further guidance or support, please contact us to discuss your specific needs or concerns as we continue to work for our Deputies for fair and reasonable outcomes in relation to costs.