Court of Protection Hub
  • Home
  • Resources
  • Cases
  • News & Views
  • About the book
  • About the site

Cases

ACC & Ors (property and affairs deputy; recovering assets costs for legal proceedings) [2020] EWCOP 9

3/3/2020

 
Judgment concerning whether, and in what circumstances, the deputy can recover from the protected person’s assets costs which have been or are likely to be incurred in legal proceedings.
The judgment concerns three separate sets of proceedings whose only common factor was that the deputies in each case were connected with Irwin Mitchell: in two of the cases the deputy was the Irwin Mitchell Trust Corporation and in third case the deputy was a partner in that firm. No express provision “either granting or excluding authority to instruct solicitors or to conduct any kind of proceedings” was in any of the orders appointing the deputy. In the event litigation arose relating to each P (for entirely separate reasons) and questions arose as to the costs and also potential conflicts of interest in appointing Irwin Mitchell to act in the litigation.
​
Hilder HHJ sets out the background to the three sets of proceedings, the position of the parties and the relevant law before at [45-49] explaining that the orders appointing the deputies contained a general authority and that these proceedings had “arisen because the Court had concerns about what the Applicants regard as a reasonable interpretation of ‘general’ authority.” Whilst these three cases “demonstrate a clear need for further amplification of the Court’s approach” she approached that task cautiously  as “‘General’ authority is not susceptible to exhaustive definition.” To do that she poses herself a series of questions:
  • What authorisation is required to conduct litigation on behalf of P? [51]
  • What about further proceedings in the Court of Protection? [52]
  • To what extent does “general authority” encompass authority to take legal advice on behalf of P? [53]
  • Where is the line drawn between seeking advice and conducting litigation? [54]
  • What about urgent matters? [55]
  • How should conflicts of interest be addressed? [56]
  • What about cases where the deputy is not the instructing party? [57]
  • What about acting as litigation friend? [58]
  • What if P has capacity to give instructions for the work in question? [59]
Her conclusions on those questions are helpfully set out in an Appendix to the judgment reproduced below:

"1. The “general” authority to manage property and affairs which is granted by the standard deputyship order encompasses those common or ordinary tasks which are required to administer P’s estate efficiently. [46 - 48]

2. Authority to make a decision / do an act in respect of P’s property and affairs encompasses such ordinary non-contentious legal tasks, including obtaining legal advice, as are ancillary to giving effect to that authority. [53]

3. In particular:

  a. authority to purchase or sell property includes conveyancing [53.2]
  b. authority to let property includes dealing with leases or tenancy agreements [53.3]
  c. authority to conduct P’s business includes dealing with employment contracts of that business [53.4]
  d. “general” authority encompasses:

    i. the preparation of an annual tax return, and therefore obtaining advice as to completion of the return [53.7(a)];
    ii. discharging P’s financial responsibilities under a tenancy, and therefore obtaining advice as to liabilities under the tenancy [53.7(b)];
    iii. applying P’s funds so as to ensure that the costs of his care arrangements are met, and therefore dealing with employment contracts of directly employed carers [53.7(c)]

4. Specific authority is required to conduct litigation on behalf of P [paragraph 51] except where the contemplated litigation is in the Court of Protection in respect of a property and affairs issue [52.4] or to seek directions in respect of a welfare issue [52.10].

5. Where a deputy has authority to make a decision / do an act in respect of P’s property and affairs, such authority encompasses steps in contemplation of contentious litigation in the realm of that authority up to receiving the Letter of Response  but no further [54.4]. In particular:

  a. authority to let property encompasses taking steps to form a view as to whether there are grounds to evict a tenant of such property [53.13];
  b. “general” authority to manage P’s funds includes taking steps to form a view about whether a debt said to have been incurred by P is properly payable pursuant to section 7 of the Mental Capacity Act 2005 [53.13];
  c. “general” authority to manage P’s funds includes steps up to but not including the delivery of a letter of appeal in respect of a decision that P is not eligible for continuing healthcare funding [54.8(a)];
  d. where authority encompasses steps in contemplation of contentious litigation, that includes obtaining Counsel’s opinion. [54.5]

6. “General” authority of a property and affairs deputyship order does not encompass seeking advice or other steps preliminary to litigation in respect of welfare issues; it does encompass making an application to the Court of Protection for further directions /specific authority in respect of welfare issues. [54.6]

7. “General” authority of property and affairs deputyship does not encompass steps in contemplation of an appeal against the decision of an Education, Health and Care Plan. [54.8(b)]  

8. If circumstances arise where the protection of P’s interests requires action to be taken so urgently that prior authority to litigate cannot reasonably be obtained, a deputy proceeds at risk as to costs but may make a retrospective application for authority to recover costs from P’s funds. There is no presumption that such application will be granted - each application will be considered on its merits. [55]
 
9. Where a deputy wishes to instruct his own firm to carry out legal tasks, special measures are required to address the conflict of interest:

  a. the deputy may seek prior authority [56.7(a) - (e)];
  b. the deputy is required to seek - in a manner which is proportionate to the magnitude of the costs involved and the importance of the issue to P - three quotations from appropriate providers (including one from his own firm), and determine where to give instructions in the best interests of P [paragraph 56.7(f)(i)];
  c. the deputy must seek prior authority from the Court if the anticipated costs exceed £2 000 + VAT;
  d. the deputy must clearly set out any legal fees incurred in the account to the Public Guardian and append the notes of the decision-making process to the return. [56.7(f)(iv)] 

10. Specific authority is required to use P’s funds to pay a third party’s legal costs, even if those costs relate to litigation for the benefit of P. [paragraph 57]

11. The Official Solicitor is willing to act as litigation friend for P without charge in any of the existing classes of cases in which she acts where her usual criteria are met. [paragraph 58]

12. If P has capacity to give instructions for particular work, he will also have capacity to agree the costs of that work. [59]"


Read the full judgment on Bailii


Comments are closed.
    Case summaries on every Court of Protection case & other relevant decisions with links to the full judgment where available. 

    Support the Hub
    This site is free to access but if you find it useful then please consider a contribution by way of support for our work.  Click here to contribute.

    Sign up for our free email alert

    We do not share your details with any third parties and you can unsubscribe at  any time

    RSS Feed


    More from Bath Publishing


    Browse

    Categories

    All
    Advance Decisions
    Assessments
    Best Interests
    Capacity
    Committal
    Contact
    Contempt Of Court
    Coronavirus
    Costs
    Deputies
    Disclosure
    DNA Testing
    DOLs
    End Of Life Decisions
    Finance
    Gifts
    Habitual Residence
    Human Rights
    Inherent Jurisdiction
    Injunctions
    International
    Jurisdiction
    LPA/EPA
    LPAs
    Medical Treatment
    Personal Welfare
    Practice & Procedure
    Pregnancy & Contraception
    Publicity
    Religion
    Reporting
    Residence
    Settlement
    Sexual Relations
    Statutory Will
    Sterilisation And Termination

    Archives

    February 2023
    January 2023
    December 2022
    November 2022
    October 2022
    September 2022
    August 2022
    July 2022
    June 2022
    May 2022
    April 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    October 2021
    September 2021
    August 2021
    July 2021
    June 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    September 2020
    August 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    January 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    June 2019
    May 2019
    April 2019
    March 2019
    February 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    April 2018
    March 2018
    February 2018
    January 2018
    December 2017
    November 2017
    October 2017
    September 2017
    August 2017
    July 2017
    June 2017
    May 2017
    February 2017
    October 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015


Powered by Create your own unique website with customizable templates.
  • Home
  • Resources
  • Cases
  • News & Views
  • About the book
  • About the site