A discussion between three of the R Costings experts’, Rebecca Robson, Kate Benn and Megan Dean, on the impact of PLK & Ors.
Kate – It seems like a lot has changed within the court of protection for the positive in the last month or so, too much not to share and discuss. So, what has been in the news recently Rebecca?
Rebecca – Well obviously there has been the hourly rate case, PLK whereby an uplift of 20% was allowed upon the guideline hourly rates by Master Whalen which is very good news and an excellent outcome.
Kate – Yes it is good news; the case was all about the determination of the hourly rate and the fact that the court assessors are applying that guideline hourly rate very robustly and there is very rarely any movement on the hourly rate. This case was all about seeking for the SCCO to use more of their discretion under CPR44.4 as to the hourly rates rather than a blanket of approach of guideline hourly rates and as Rebecca said the outcome was that an increase of 20% upon the guideline hourly rates set in 2010 would be considered reasonable or as a starting point generally. Why did Master Whalan make that decision?
Rebecca – I think because there has not been an increase overall to the guideline hourly rates for some time. A great deal of groundwork was completed in preparation of this case by the Solicitor firms involved to ensure this result was achieved.
Kate – Interestingly, Master Whalan considered commercial factors alongside the evidence provided, and made specific comment as to the efforts and work that Deputies are required to put in these days which is something our clients have previously raised concerns about. Another one of the concerns our clients’ have is the fact that they have a very small team so the Deputy sometimes has to undertake some of the Grade C/D work because there is little to no other option as there is no greater remuneration for them so they cannot build up these teams to the extent they would like. Perhaps a 20% increase will be beneficial for those smaller teams and perhaps we will see an enhanced blended rate also?
Rebecca – I would imagine a 20% increase will also be applied to the blended rate, the judgement makes reference to the particular case of Yahiaoui so it should of course still be relevant and applied with the increased rates in mind, at least I would definitely hope so.
Kate – It was nice to see a judge comment on the work and effort that deputies put into case management. Master Whalan commended how much extra work is required of the Deputy in recent times. Even the Swift v Carpenter case highlights the complexities deputies have for example in controlling multi-million pound budgets following personal injury settlements and that level of complexity isn’t being recognized within the current hourly rates; finally this may be an opportunity for fee earners to feel a bit more remunerated for their efforts and work. It also effects the whole team not just deputies.
Megan – I think this has been long awaited really, a lot has changed in the last 10 years. There is a 6-year lag from when rates were last reviewed. I think as things progress both deputies and their teams will hopefully feel more rewarded as currently if the team do put in a lot of effort and the hourly rate is then capped it is difficult.
Kate – Megan you work closely with the court of protection teams – especially when it comes to the electronic filing. But how do you think this case it will affect the lower grade fee earners?
Megan – I think with a lot of the teams we work with as previously mentioned they are almost reduced in numbers because they do not have the remuneration to build up their teams. This can mean that sometimes there is also a lag in training meaning the Deputy does have to complete some of the more junior work than they can recover costs for. We will hopefully see a shift in this following the judgement.
Kate – So yes, if that blended rate can also see the 20% increase it will benefit all round. Interestingly there has already been discussions with our clients and as we all see on social media that a lot of practitioners want to address those bills currently with the court waiting for assessment. I think a lot of people were hoping to withdraw those bills at the SCCO and apply the increased rates back to 2018; it is interesting that the court very quickly foresaw this situation and a practice note followed from senior Costs Judge Gordon-Saker. Rebecca, what are your thoughts on the practice note:
Rebecca – It does raise some practical points, of course the judgement only relates to bills within the general management period of 2018-2020 which is important to note. Also, the indemnity principle obviously must still apply for any increases sought going forward or retrospectively. So, this is not a blanket increase if there is no provision within the client care documentation for rates at that level. The Practice note does also clarify that a Deputy cannot withdraw or amend a detailed bill or substitute a new bill without the consent of the client or an order from the court. That is also important to bear in mind.
Kate – I think that’s confirming that attempts to seek an order on the basis of PLK alone is unlikely to be granted purely to increase the hourly rate.
Rebecca – Yes, obviously deputies are generally entitled to an informal reconsideration following an assessment. But the note makes the point that any request for reconsideration designed to recover rates higher than
those claimed is unlikely to be successful.
Kate – I think it is also important to note this does not prevent you from seeking an enhanced rate above the 20%. CPR 44.4(3) the ”pillars of wisdom” will still allow your costs expert to seek an increase on the enhanced rate if the case and work done warrants it (and of course the retainer). You are still going to have the exceptional cases warranting rates far higher than the guideline or PLK rates. So, I think it is important to always remember and ask your draftsman if you have any room to seek an enhancement and claim that as it will then give you the scope on appeal.
I do feel though that proportionality may take a bigger hit going forward. I think that it is something that is often forgotten in the Court of Protection, but we see it when we look at the assessed bills when they are returned. Proportionality is often having a big impact on reductions and I just wonder whether proportionality will be even stricter now with the increased hourly rates from the court. It will be interesting to see. Overall, this is incredibly positive for our clients. We have the Civil Justice Committee and current working group that is dealing with the current hourly rates. It is already well known that the case of PLK & Ors. is being used by claimant parties to seek an enhanced hourly rate in personal injury cases, not just court of protection. What are your views on that Rebecca?
Rebecca – I think that there is probably going to be caution for these rates to apply to non-court of protection cases; but it does add to the volume of case law which appears to support increased rates such as in Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019] EWCH 2504 (TCC. There is a growing level of case law that is suggesting the guideline hourly rates are not suitable starting points. So broadly this will be supporting but not necessarily persuasive. Going back to PLK. I have seen comments that there may be a reluctance to accept PLK for non-COP work and referring to the level of preparatory work that went into PLK to build up their evidence and support their case this might be an issue outside of the COP.
Kate – I think you’re right, there has been a big concern and even criticism from the working committee to date that there has been very little supporting evidence provided to date for consideration. The committee are asking for this evidence from previous assessments, historical assessment, costs lawyers and law firms and I think there is currently concern that this is not being provided. Master Whalen made It very clear that any judgement that he has made in this case is very much subject to the findings of the Civil Justice Committee. So, if this evidence isn’t being provided on GHR generally then this case could have a short life span. There are some big positives to come out of PLK; Master Whalan made considerations on salary, experience and skills, and general commercial factors alongside the rate of inflation since 2010. And of course, the working committee will make those considerations but as you say the outcome in PLK was largely due to the supporting evidence provided. So I suppose the danger is that if costs lawyers and solicitor firms aren’t going to be providing the evidence to the working committee then how long will PLK benefit deputies and how far will it go to changing the rates across the board?
Rebecca – Yes I think this is where the enhanced hourly rates fell down before in 2014 – where the rates didn’t end up being increased.
Kate – Moving on then, in addition to the rates, there are some hidden costs aren’t there Megan in the court of protection, we are finding these are really impacting our clients’ time so to help, Megan you have been working solidly to build up an e-filing service that you can offer to our clients and the benefit that has given them.
Megan – Yes, when e-filing was first introduced and became mandatory this was a big problem for a lot of our clients as they were not aware of it. We tried to get ahead of the game and started voluntarily e-filing October 2019 before it was mandatory in January. A lot of our clients previously submitted the bills to the court themselves. Many clients continued to do this after the 20th January and had their bills returned due to the introduction of e-filing. It became apparent that a lot of our clients became stuck as, having missed training provided previously in October. This is where we stepped up our client care and I have been e-filing our clients bills and dealing with the admin behind submitting files to the SCCO. I have been working closely with our clients and their COP teams to form a process increasing turn around times and boosting cashflow. This really takes the burden off the deputies and their teams allowing us to solely focus on maximizing their costs.
Kate – Because we are doing this regularly and have been doing it for a year now you have learned the pitfalls of the system, and why files may be rejected. So overall this just speeds up the process and prevents unnecessary delays of re-serving. We are avoiding the problems and our clients are finding that their Grade C/D time isn’t being taken up submitting bills to court and getting the files ready. Equally during Covid a lot of junior members of the COP teams had to be furloughed but with our assistance our clients have still managed to get their bills assessed without delay. I think it is safe to say we are seeing quicker results from this and our clients are benefitting from it?
Megan – Completely! The quicker we can submit the bill to be assessed to the court, which we turnaround within 24 hours, the quicker the bill is accepted by the court, again usually within 48 hours. Then we have our inhouse couriers deliver the files to the court. So we know the files are delivered safely, securely and quickly. I then have a dedicated time once a week to liaise with the court so we can advise our client on the backlog and expected assessment dates. As soon as the assessed bill is returned to us then we recalculate the bill and provide advice to our clients. If our client is happy with the assessment, we submit the application for the final costs certificate.
Kate – Not only do you step in and do all this for the client but I know you have provided a few in-person pre Covid and since Covid, online tutorials of the e-filing system yet clients are still wanting us to provide that service for them. But we certainly give clients the tools to be able to do it themselves.
Megan – I think the client is going to want to know the process especially if they ever need to do – the e-filing system as a whole is quite difficult to get to grips with but once you have, it gets easier.
Kate – The e-filing is something that really impacted our clients and we took that burden off them. The Covid pandemic has brought its own complications and additional workload for deputies, so if we can assist with these other tasks that’s what we’re here for. The court delays are having an impact on Deputy cash flow and everything we do as a team at r costings from initial contact and client care, to preparing the Bills and advising on rates, recovery and potential appeals to the administration and e-filing of the Bills, FCC and safe and secure free delivery of papers to the Court allows our Deputy clients and their teams to focus wholeheartedly on their protected parties. We like to believe that we are a reliable member of their Court of Protection Teams.
Rebecca – Yes, completely agree. And as a last reminder, if you want to increase your hourly rates going forward (and retrospectively), this is the ideal time. If deputies want to get the benefit of the increased rate, they must review their client care documentation and advise/update to ensure they are able to benefit from the rate increase.
Kate – If you want the higher hourly rates to be recovered remember to consider proportionality risks, delegate where you possibly can, and if you can’t then please make your costs draftsman aware especially due to Covid and furlough reasons which may be enough to support additional enhancement either on rate or the grade of fee earner required to undertake the work. We, as a team, work tirelessly for our clients to ensure maximum recovery but also to ensure cash flow is moving quickly and that our client’s focus can remain with their protected party, where it should be.