Here at R Costings we continue to work alongside Court appointed Deputies where they are required to step in; whether that be in relation to contentious applications appointing Deputies, or where a Deputy retires and the court appoints a new Deputy.


We are often asked to step in to assist with the costs associated with applications prior to the newly appointed Deputy’s appointment and who needs to seek to maintain a neutral stance whilst litigation concludes.


Who pays the costs following an application?


A new court appointed Deputy (Deputy) will often step in following the conclusion of an application, or mid-way through if a previous Deputy retires for example. The role of the Deputy is to catch up with the file as quickly as possible and resume conduct with the P’s best interests in mind.


Any application will then conclude, with an order for costs being made (unless an order is made silent as to costs in which case, no parties can recover their costs). If a party has acted unreasonably, or brought an application unnecessarily, the court may order the successful party’s costs be paid by the unsuccessful party. However, more often than not, in the COP, an application arising from the involvement of a P, will result in one or all parties costs being payable from the P’s estate. That means that it is the responsibility of the current Deputy to negotiate and agree costs.


What happens next?


The successful party(s) will draft their bill of costs, and can either serve it upon the court or seek to negotiate informally with the Deputy in the first instance. If the receiving party seeks to serve the bill without informal negotiations, they must commence service using a form N258B. CPR 47.19 states;


(3) The court may direct that the party seeking assessment serve a copy of the request on any person who has a financial interest in the outcome of the assessment.


PD 18.2 defines a person as having a financial interest as;

A person has a financial interest in the outcome of the assessment if the assessment will or may affect the amount of money or property to which that person is or may become entitled out of the fund. Where an interest in the fund is itself held by a trustee for the benefit of some other person, that trustee will be treated as the person having such a financial interest unless it is not appropriate to do so. ‘Trustee’ includes a personal representative, receiver or any other person acting in a fiduciary capacity.


The Deputy is therefore considered a person having a financial interest. The receiving party must therefore declare that party on their N258B. We would always encourage serving the Deputy with the bill of costs at this point, prior to formal assessment so that the Deputy can enter into informal negotiations and seek to resolve the issue of costs in order to avoid the need for detailed assessment and costs of the court, in addition to costs unnecessarily escalating between the parties. This is also supported within the SCCO Guide 2021 para 27.8;


“As a matter of good practice, solicitors must serve a copy of the bill on the deputy (if they are not acting in that capacity) prior to lodgement, as this will help to allay disputes which sometimes arise where the deputy is unaware that costs have been claimed from the P’s estate until receipt of the final costs certificate.”


In addition, there is, at least, a 6 month delay on assessments of costs falling below £35,000.00, costs in excess of this sum currently sit at a up to a 12 month delay. Negotiating costs is therefore beneficial for all parties involved to seek early resolution.


If costs cannot be agreed, or you do not serve the bill of costs on interested parties the matter will proceed to assessment once it has been filed. Once assessed, the Court will consider those with a financial interest according to the N258B and make a direction for the bill to be served accordingly on interested parties. The usual direction is for the Bill to be served on any interested parties and provides 21 days for points of dispute if the assessment is not agreed.


What happens now I have a copy of the assessment?


If you are served with the Bill of costs post-provisional assessment, you should firstly check that a Final Costs Certificate (FCC) has not been requested or granted in respect of the costs; if it has been you will need to liaise with the receiving party to have the FCC set aside or request for the FCC stopped. This will be at the receiving party’s cost for prematurely requesting.


Then, you will need to consider the costs claimed and undertake a valuation with consideration of the facts of the case. If you would like to challenge the costs, points of dispute (POD) will need preparing and serving within the 21 day period. The usual assessment process continues at this point, and we would usually advise making an offer alongside service of the POD’s in an effort to negotiate costs without the need for further court assessment.


If the receiving party does not accept the offer or costs aren’t agreed, the receiving party will need to prepare and file Points of Reply and serve these on you. The matter will then proceed to a detailed assessment. Parties invited to attend for a detailed assessment at which costs assessed, thereafter, a summary of the costs will be completed and the FCC can be sought by the receiving party.


Who pays my costs of dealing with this?


The general rule in the COP is that where proceedings relate to property or financial affairs, the costs will come from P’s estate. Therefore, the costs arising will always need to be proportionate to the estate of the P and the issues in question; the court can make alternative orders based on consideration of conduct, the successful party and role of any public body involved.


It is therefore always wise to seek cost expert advice before proceeding to challenge and draft points of dispute in relation to costs payable as the costs may well have to come from the solicitors’ pocket or the costs saving being sought is outweighed by the costs in arguing the same which is not in the best interests of the P.


For further guidance or advice, please contact Kate Benn

Return to Knowledge Base