More top tips and reminders on costs recovery

Kelsey James of A&M Bacon with some further top tips

1. Half a unit will usually be allowed when arranging routine payments at a Grade D rate. 

1a) International payments or payments of a large amount may be allowed at one unit or more depending on the circumstances. You should always ensure the attendance note details the work undertaken allowing the costs to be recovered. 

1b) When recording routine payments – you can either record your time at half unit (if your time recording system allows) or by halving your hourly rate.

2. Visiting the protected party once per annum is considered appropriate. More than one visit may be recovered depending on the case and its complexity. Additional visits can be allowed by the Court where matters are complex. For example, where a large amount of costs are being spent adapting the property and the works are required to be reviewed by the deputy to ensure the matter is progressing and unnecessary costs are not being incurred on P’s behalf or where the meetings have been requested by the family who are aware of the costs involved in having such a meeting. The deputy should consider the costs, which will be incurred, prior to undertaking the meeting and whether it is affordable. Any further visits over and above the one annual visit upon P should be fully justified.

3. When more than one fee earner attends a meeting, only the higher-grade fee earner’s time will usually be allowed. When more than one fee earner attends the meeting, it is likely their time will not be allowed within the bill of costs. However, should two lower grade fee earners attend a meeting equating to the amount of a Grade A fee earner, these costs could be allowed by the SCCO. 

For example; if a Grade C fee earner attends a protected party’s property alone, they may take 4 hours sorting through the property and obtaining documentation and information required to progress the case. This may equate to costs of £644 (£161 x four hours). However, suppose two fee earners attended; a grade C and a grade D fee earner. Let’s suppose they take 2 hours each (a total of 4 hours again); in this instance the cost will only be £568.00 (2 hrs at £161 and 2 hrs at £118).  

It is always worthwhile bearing in mind how decisions such as this can have a positive bearing on P’s resources, and we can demonstrate to the court that reasonable costs have been incurred and such costs to the estate mitigated. Our further tip here would be for each attending fee earner to produce an attendance note so as to convince the court there has been no duplication of costs. Such notes should carefully detail the work undertaken by each fee earner, which will further assist in this regard.

In addition, if you provide explanations as to why the meetings were required and/or circumstances under which the meeting arose this will assist your Cost Draftsman, who will be able to incorporate this information into the bill and the narrative to ensure this time is recovered.

4. Where a property and affairs deputy has been appointed, work relating to health and welfare is not recoverable, without permission from the Court of Protection. This is because the Court of Protection deputy has been appointed to act on P’s behalf for the management of the protected party’s property and financial affairs. The Court Order does not give the Court of Protection deputy the authority to act within matters relating to P’s welfare. Work in respect of Health and Welfare is not recoverable from the protected party’s estate without permission from the COP. The deputy should engage with appropriate health and welfare professionals, should the deputy find that a large amount of time is being used managing health and welfare matters. It may also be considered in the client’s best interests for an application to be made to the COP for the appointment of a health and welfare deputy.

5. File notes must be present as evidence of the work carried out. It is important that all file notes are provided in the correct order as the costs officer will not have time to review the whole file and may reduce or disallow time if the file note is not easily accessible.  We have seen occasions where items are disallowed or heavily reduced where the costs officer has cited “lack of attendance note” as the reason for such reductions. The presence of the attendance note not only assists the court but also the costs draftsman, as they are able to ensure full and accurate details of the work undertaken can be provided within the bill.

6. Litigation costs should be appropriately claimed within the litigation proceedings. A common issue we see arising is where an appointed deputy assists the litigator with the ongoing litigation. Such examples can include assisting with the provision of information in support of further interim payments and in support of ongoing claims. Where this work is claimed within general management bills, the court will often “disallow” this time, stating such time should be claimed within the litigation bill. This does appear logical to us as where the costs are recovered from the third-party representatives, this means they are paid in addition to the compensation awarded to P and therefore means such costs do not come from P’s estate.

In addition, it is sometimes difficult to know those elements of work that have been undertaken in relation to general management work and those in relation to litigation and where to draw the line.  However, our advice is to open a separate file for the “litigation” work undertaken by the deputy, which enables the costs to be recovered within the appropriate bill at the successful conclusion of the litigation.

7.  OPG Assurance Visits: the Court deems such attendances as overheads. The OPG undertakes assurance visits to professional deputies on a cycle that is currently once every three years. The visit aims to give the Public Guardian assurances regarding the deputy’s management of all of their deputyship clients and therefore the cost should be spread across their caseload. The assurance visit consists of questions and evidence gathering covering a range of professional deputy standards resulting in assurances about the standards of their work and effective management of all of their cases.

Both the OPG and SCCO are of the view that the work done in relation to an assurance visit should be subsumed by solicitors’ overheads. It would therefore seem these assurance visits are not recoverable from P’s estate following these views.

8. Inter fee earner discussion will likely be deemed by the Court as “supervision” and will be disallowed following the decision of the case of Leighanne Radcliffe. In respect of communications and discussions between Mr Watson and Ms Butterworth, Costs Officer Sainthouse followed the decision in December 1998, In the Matter of Garylee Grimsley. In that case claims in respect of discussions between a solicitor receiver and his junior employee were disallowed on the basis that: “for the purposes of claim costs in the bill Mr Baker, [the junior employee] is treating Mr Pickering [the solicitor receiver] as if Mr Pickering were a lay receiver who had instructed Irwin Mitchell [his firm] to act as his solicitor”. 

On the other hand, the case of Fuseon Limited [2020] EWHC B18 (Costs) states inter fee earner discussions as being allowable were necessary, as it is considered difficult to delegate tasks to a junior fee earner without instructing them what to do and the reasonable time of the delegator and the delegate is usually now considered to be recoverable. The case quotes – “I agree with the Master that, in principle, if, as here, much of the work on files was being done by paralegals under the supervision of legal executives, it was necessary, from time to time, to have discussions between fee earners, specifically supervising solicitors, including partners.” This will show the Cost Officer that the work undertaken was required as way of progressing P’s case. 

Our advice when having inter fee earner discussion would be to present your time as consideration of P’s case with a colleague and not as an internal meeting. Also, ensure your work shows that the work undertaken was for the purpose of P’s case, where work has been delegated to another fee earner and progression have been made, benefiting P. The case of Fuseon Limited relates to a Legal Aid case (a criminal matter) and is yet untested by ourselves as to whether the court will adopt this same approach in Court of Protection cases.

9.  It is important that each bill narrative really details P’s case as an individual matter and how every action was taken by the deputy for the progression of P’s case in his/her best interests. Details relating to his/her personal situation, as well as the complexity of the case will allow the costs officer to become fully aware of P’s background and case allowing the best recovery of costs. We always fully appreciate the detailed information we request from our clients to ensure this information is provided to the costs officer from the outset. Full details of the nature and extent of P’s estate are also essential and assists the court when considering the proportionality of the costs claimed.

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​Kelsey James, Court of Protection Costs Specialist

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