This month, Paul Cruickshanks, Head of Court of Protection at A&M Bacon Ltd, identifies the Top 10 most common reductions made by the Senior Courts Costs Office when assessing Court of Protection costs and suggests ways to mitigate these reductions.
We submit numerous bills for assessment each year and are careful to monitor the outcomes following assessment, which enables us to see the nature of the reductions made by the costs officers and recognise any trends.
So here is our count down of the 10 most common reductions the court makes when assessing Court of Protection bills of costs.
These are only allowed at one half unit for a grade D fee earner. The time taken within the half unit allowed includes reviewing the sums due and making the payment itself, whether it be preparing a cheque or (more commonly) instructions for the electronic payment. This has been long established under the 2004 case of Leighanne Radcliffe and, more recently, the unreported case of Connor Kirby. This view is also endorsed by the Office of the Public Guardian (OPG) and page 7, paragraph 3 of their guidance on professional deputy costs (SD9) refers.
Our advice here would be, if possible, to look at your procedures relating to how you pay liabilities and ensure this is streamlined. We appreciate the need for you to ensure appropriate checks are undertaken before payments are made.
If you are able to set up a fee earner for “paying invoices”, perhaps utilising a half rate for a grade D fee earner for your area, this will ensure you are not recording WIP to your file that you will not recover. We now claim half rates for the majority of clients for whom we undertake work.
9. Duplication of preparation
It is not unusual for the SCCO to reduce or disallow work it feels is duplicative in nature. A common theme we see is the deputy considering an issue or document prepared, which is then followed by a junior fee earner considering the same thing.
Our advice here would be to ensure that each fee earner drafts an attendance note of the work being undertaken. If an entry from a deputy states that they are considering a document prepared and revisions required, followed by a further note by the junior fee earner stating they are drafting revisions to the document, it is more likely this will be recovered.
Further, if the revisions are required as a result of updated information and documentation being received from a party, this will further justify the need to revise the document; this should be stated on the attendance note so the court can be informed.
8. Internal meetings
Following on from the common reductions above, the court will almost always disallow any inter fee-earner meetings, usually between a deputy and a junior fee earner. Again, this principle was established in Leighanne Radcliffe.
Our view is that these meetings are usually required as a result of a more complex issue arising, which requires the input of a senior fee earner. Our advice is for the senior fee earner to record the time as consideration time. Further, if time is being recorded by the junior fee earner, our advice is to state the next steps that are to be undertaken to progress the matter.
It is important to ensure you are remunerated fairly for this work, whilst at the same time ensuring P pays what is reasonable. In some cases, you may wish to consider whether or not it is appropriate for both fee earners to record their time.
7. Delegation (or lack thereof!).
A recurring theme we have seen arising, certainly within the last few years, are reductions made to work undertaken by senior fee earners (Grades A and B most commonly). Reductions are made where the court perceives the work undertaken to be capably handled by grade C or D fee earner.
We appreciate all firms are different. Indeed, some we work for are sole practitioners and do not have the luxury of junior fee earners to whom they can delegate work. For such firms, you may wish to consider instructing the costs draftsman to claim a lower rate for certain elements of work (a simple note on the attendance will suffice). However, do be careful not to self-assess; that is what the SCCO are there to do after all!
For those larger firms for whom we work, our advice is to ensure the work you are doing is undertaken by a fee earner at the appropriate level. The court will usually consider visits to the Protected Party and other parties as reasonable to be undertaken by senior fee earners. We have noted that attendances on the Independent Financial Advisors are also usually allowed at higher rates, particularly when dealing with more complex issues surrounding the investment portfolio.
6. Hourly rates.
It is useful to remember that the starting point used by the court for assessing your hourly rate will be the SCCO Guideline rates. As readers may be aware, these have not been updated since 2010! Details of the SCCO rates that are likely to be allowed can be found here. This details the hourly rates the court will allow as well as the various grades of fee earner and different rates for various locations around the country depending on where your practice is located.
Our advice here is to review these rates and consider applying them. However, it is worthwhile remembering that these rates are guidelines. For more complex matters, you may wish to consider seeking an enhancement on these rates, for example if a case has a disputed or litigious element to it, and/or if the case is high in value with complex assets involved.
Enhancements can be applied to any fee earner’s work but should be justified.
5. Time reduced or disallowed for lack of an attendance note
We are not in any doubt whatsoever that the court does not have the time or resource to go through each and every file note when assessing your bill of costs. However, there is always the chance the costs officer will want to view any given attendance to confirm the work undertaken and assess the same. Should there not be a supporting note, there is a very strong chance your time will be heavily reduced or disallowed if the note cannot be located.
It is therefore very important to ensure that i) all attendance notes for ALL work on the file are present and ii) they are filed in chronological order to enable the costs officer to easily access them (they will likely not spend time trying to locate a note that has been filed in the wrong place).
We ensure, when drafting all bills of costs, that any missing notes are brought to your attention prior to assessment, to enable you to ensure all notes are present for this purpose.
4. Letters in
The time spent for reading and reviewing letters received is not normally allowed by the court. This is down to the provisions of Section 5.22 (1) of the Costs Practice Direction supplementing CPR Part 47.6, which states:
“Routine letters out, routine e-mails out and routine telephone calls will in general be allowed on a unit basis of 6 minutes each, the charge being calculated by reference to the appropriate hourly rate. The unit charge for letters out and e-mails out will include perusing and considering the routine letters in or e-mails in.”
If you are required to consider documents that are more lengthy and complex in their nature, we would recommend drafting a separate attendance note and record the work as consideration time of that particular issue. This is much more likely to be allowed by the court. If you also provide the court with details of the length of the document, this will be really useful in justifying the time spent.
3. Time spent on annual deputyship reports
We often see many hours of time claimed for drafting annual deputyship reports. However, we do not always know why such high claims of time are made. It is worthwhile bearing in mind the costs officer will not know your file as well as you do. It is always worthwhile detailing, particularly where additional time is spent, information relating to the work undertaken, the value of the estate (and funds being accounted for) and the number of documents considered (even if online).
We appreciate that detailed and complete information has to be provided to the OPG and clients’ estates can be complex and valuable. We are of no doubt that the time claimed is required and in order to ensure this time is recovered, the more information that can be provided to the costs officer the better.
A great example we had recently was working for a client who had taken over the deputyship from a lay deputy. The record keeping of the lay deputy was, shall we say, below par and therefore further work in putting P’s accounts in order was required. Had this been drawn to the attention of the court, the additional time claimed will have been allowed. It was necessary for us to appeal to the court for reconsideration of the reductions made to the time spent in preparing the reports and when we advised the court of the difficulties in preparing the same (due to the previous administration of P’s affairs) the court allowed the majority of time claimed.
2. Levels of contact.
This is, in our view, always a tricky issue. It is necessary for you, as practitioners, to do all you can to advise and assist your clients and their family, to ensure actions are taken in P’s best interests. This often involves working closely with P and their family, along with fellow professionals, particularly in the early phases of a deputyship.
However, lately we have noted that costs officers are reducing the time claimed for meetings, attendances and preparation time on P and their family, as well as other parties, if the court feels this time is too high.
It is worthwhile bearing in mind that each time you attend a meeting upon the family, the reasons for said meeting should be contained within your attendance note; this will help to justify the same. This is particularly important where the client lives further afield and additional time and expenses are incurred for travelling to the family.
The second idea you may wish to consider will be to advise the family of the cost of the meeting. This can be particularly useful for second, third, fourth meetings that are held at the request of the family. If you have advised them of the costs following their request, you can state to the court that you have advised the family of the costs and they were happy to proceed. Again, this will help to ensure your time is recovered.
Again, a detailed note documenting the issues discussed and outcomes of the meeting, will assist in ensuring this time is recovered.
1. More than one fee earner attending on parties.
We felt this should come in at number 1 and this remains a common reduction, but also accounts for, in most cases, the biggest reductions made to a bill of costs, given the level of the time disallowed.
It is notoriously difficult to recover the time of more than one fee earner for attending upon the parties, as the court deems this to be duplication of costs. This view has been further endorsed by the OPG within their costs guidance document (SD9). Page 7 paragraph 4 refers.
However, it is worthwhile pointing out that the guidance states “The SCCO allows the cost of one fee earner in all except the most exceptional cases”. Indeed, we have had previous successes in recovering the work of more than fee earner in a few cases, where it was felt the circumstances of the case justified the same. We were required to appeal the initial assessment (where this time had been disallowed) to recover the same.
Head of Court of Protection
A&M Bacon Ltd
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