Things are looking positive in the Court of Protection; as of today with immediate effect, following judgment from Master Whalan, hourly rates in the Court of Protection can be claimed at 120% of the GHR (2010)
As all litigation and COP practitioners are acutely aware, the GHR have not been updated since 2010. Defendant’s still seek to rely on outdated rates, with little consideration as to RPI inflation or commercial effects pushing rates upward. This has also been a growing concern within the Court of Protection for Deputies who are required to deal with more complicated matters with Master Whalan commenting that the role of a Deputy often involves work that is more complex; ‘Protected parties can be difficult and time consuming clients and this often imposes a considerable burden of responsibility on Deputies’. There is also clearly even more work now involved for Deputies in these current times with the current pandemic placing additional workloads upon Deputies and their teams: such as employment issues, care team access, and health and safety concerns by way of small example.
I recently posted on the fact that at last, the Working Committee headed up by Mr Justice Stewart, was now in full flow and hopefully comments made by those such as O’Farrell J Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019] EWHC 2504 (TCC) para 14), supported by Master Whalan in his judgment coupled with the working groups findings will encourage the Civil Justice Council to amend the GHR positively. O’Farrell summarised the position eloquently; ‘It is unsatisfactory that the guidelines are based on rates fixed in 2010 and reviewed in 2014, as they are not helpful in determining reasonable rates in 2019.’
Master Whalan has now spoken in regards to the GHR and the application of these rates in the Court of Protection. It is widely accepted that the GHR are applied routinely across a huge proportion of Deputies annual management costs with little dispute. This is on the basis that ‘most COP bills will be properly assessed by Costs Officers, who will apply the relevant GHR unless there is good reason to depart from them’. It is on the rare occasion, and often following the Deputy (or their costs draftsperson) incurring substantial non-recoverable costs, that appeals are successfully made to recover rates in excess of the GHR when the rare case is accepted as being a exemption from the ‘rule’. The GHR however are just that, a guideline. This is something that Claimant’s and Defendant’s have interpreted differently now for almost 10 years.
Master Whalan in his judgment, has commended the work of professional deputies, highlighting that the work done is invariably complex. More and more demands are placed on Deputies and their teams also not just by the protected parties but often through their families and the additional demands they bring; the challenges now faced are arguably more than one would ordinarily expect within the GHR. The role of the deputy and the COP team is vastly different now to that which it was 10 years ago.
It is so important that the work done by those involved with Protected Parties is recognised, the Deputy’s role safe-guard’s assets and the life that a protected party chooses to lead. It is therefore right that the roles undertaken by the Deputies and their teams is acknowledged by way of acceptance that the GHR shouldn’t be the rule when recovering annual management costs. Perhaps most notably, Master Whalan has said ‘I recognise also the force in the submission that the failure to review the GHR since 2010 threatens the viability of work that is fundamental to the operation of the COP and the court system generally’.
Having provided further comment and calculations based upon inflation, salary evidence and ‘other commercial factors’, Master Whalan has determined that with immediate effect, ‘if the rates claimed fall within approximately 120% of the 2010 GHR, then they should be regarded as being prima facie reasonable…this approach can be adopted immediately and is applicable to all outstanding bills, regardless of whether the period is to 2018, 2019 or 2020 or subsequently’
A 20% increase can therefore be applied for all costs management, including costs incurred dating back to 2018 and going forward. This will be a welcome and encouraging change for Deputies and their teams; hourly rates can now be claimed as follows (A – D respectively):-
London 1 £490, £355, £271, £165
London 2 £380, £290, £235, £151
London 3 £275-320, £206-275, £198, £145
Band 1 £260, £230, £193, £142
Band 2 £241, £212, £175, £133
Of course, this does not prevent further uplifts being sought in exceptional cases, applying CPR 44.4, and the increases will of course be subject to any further determinative updates from the Civil Justice Committee; but at least for now this provides some welcome relief for Deputies that strive to do the best work whilst keeping costs at a minimum for their Protected Parties. Any increase above those to the 2010 GHR sought however will have to be in keeping with your client retainers. If you would like any advice in relation to your current retainer and/or increasing the rates going forward to ensure you can benefit from this judgment please don’t hesitate to get in touch.
To find out what we can do for you and your annual management costs, please don’t hesitate to contact me or one of the team at kate@rcostings.co.uk or info@rcostings.co.uk. Telephone 01480 220 808 and we will be happy to help with any COP/Deputy costs queries.