Recovery of “litigation” costs incurred by a professional deputy in the Court of Protection

Over the past few years Paul Cruickshanks of A&M Bacon has seen an increase in costs “disallowed” within Court of Protection assessments as they “should be claimed within the litigation proceedings”. In this article he explores the types of work that may be “disallowed” for these reasons and offer some advice and tips on how you can ensure this work is recovered.

We have seen, over the course of the past three of four years, a number of items that are “disallowed” within Court of Protection assessments, with the reasons provided by the costs officers at the SCCO given as “should be claimed within the litigation proceedings”.

The eagle eyed amongst you will have spotted we have put the word disallowed in inverted commas. The work is not disallowed, per se, but rather it is the view of the SCCO that such work should be claimed within the litigation bill, rather than an annual general management bill.
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Here, we explore the types of work that may be “disallowed” for these reasons and offer some advice and tips on how you can ensure this work you have undertaken is recovered.
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What is being disallowed?
Most commonly, any work undertaken by the professional deputy is prone to being disallowed by the costs officers in assisting the litigator with the ongoing case. This is not so much of an issue in deputyships where the litigation has concluded but can cause issues where the litigation is ongoing or has recently settled.

We typically see comments that the following types of work are being struck out with advice to claim the same within the litigation bill:-

1. Assisting the litigator by providing updated schedules of expenditure and supporting receipts to assist with the overall claim or to justify a further interim payment being made
2. Liaising with the litigators
3. Drafting witness statements detailing projected deputyship costs
4. Seeking advice from the litigator on the recoverability of specific items requested by P/the family or case manager
5. Attending round table or joint settlement meetings

This list covers examples of the types of work that are disallowed in general management bills.  It is difficult, sometimes, to know where to draw the line; what constitutes general management work and what relates to the recovery of the litigation. This is especially true of point 4 above.

Why is this work being disallowed?
In 2016, Master Haworth undertook an oral hearing specifically in relation to this issue, namely, the costs incurred by the deputy in relation to ongoing litigation.  The Master particularly highlighted requests made by the litigator for information relating to the affairs of P and more particularly in relation to possible interim payment applications.  

The view was taken that where a deputy is being asked to provide information and/or schedules and/or documentation to support an interim payment application in ongoing litigation there are not general management charges.  The inference here is that such work should be claimed within the litigation proceedings.

Whilst initially we were surprised to learn of this decision, it makes sense.  If such work is included within the litigation, it will be (in theory at least!) recovered as part of the litigation costs, in addition to any compensation awarded to P. This will therefore serve to maximise P’s award and minimise the costs taken from the estate.

What can I do to ensure my costs for this work are recovered?
Our advice here is simple. We strongly recommend opening a separate file to record this time.  However, it is appreciated (as detailed above) that it can sometimes be hard to draw the line as to what is to be considered general management work and what constitutes litigation work.  

That said, by separating this work insofar as is reasonably practicable, it will ensure you are able to recover the appropriate fees under the appropriate bill.

We work for a large number of firms and often see deputyships being referred in-house by litigation practitioners to their Court of Protection specialists. There is seldom need for formal terms of business to be entered into in these situations, but we would recommend a formal terms of business (TOBA) be agreed with the litigator in all circumstances. Even if the litigator works in house, a formal TOBA is advised as there may be changes to these arrangements (for example, if a litigator moves firms during the litigation process and takes the client with them).

A TOBA is even more strongly advised where the litigation is being undertaken by an external firm and will ensure your costs for this work will be recovered once the litigation has been concluded.

What if I haven’t done this and have an ongoing case?
If you were to submit a bill for assessment containing work of this nature, it is likely such work (or proportion of such work) would be disallowed. If the litigation is ongoing, you may be able to identify the work disallowed under the general management bill and transfer the time over to a new file. We would recommend early dialogue with the litigator to let them know of this and bring to their intention the need to ensure your costs are included as part of the litigation bill when this is prepared, following the successful conclusion of the case.

It can be more tricky where costs proceedings are ongoing and are concluded. It is for this reason we have provided these tips here to ensure you will not lose out on the time you are required to spend in ensuring P’s compensation award is maximised.
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Paul Cruickshanks
paul.cruickshanks@aandmbacon.co.uk
01733 359 030.

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