A stark warning to Deputies...

Our Amy Avory recently attended an Oral Redetermination, before Senior Costs Judge Gordon-Saker, seeking a reconsideration of his direction, detailed within a provisionally assessed Bill of Costs, for the Deputy to obtain retrospective authority from the Court of Protection (COP) to obtain a Final Costs Certificate (FCC) due to General Management work being claimed in an Application Bill.

This article will be of interest to professional deputies, and those assisting professional deputies who work under the jurisdiction of the Court of Protection.

Following the initial assessment by the Senior Courts Costs Office (“SCCO”), an informal appeal was lodged with the SCCO seeking a redetermination of Senior Costs Judge Gordon Saker’s direction, amongst other items that were deemed to be reduced heavily at the initial provisional assessment. Following the appeal, an Oral Redetermination was listed, and the deputyship firm instructed our Amy Avory to attend such.

On assessment, the Senior Costs Judge had directed that for costs of a General Management nature, claimed within the Application Bill, to be recovered and paid from P’s estate, authority to incur such costs would need to be obtained from the Court of Protection.  This was not an issue we have ever encountered here at A & M Bacon, and upon speaking to numerous colleagues, clients and peers, is not something the industry ever appears to have encountered before.

Despite numerous detailed arguments, and Amy’s best efforts, Senior Costs Judge Gordon-Saker maintained his position, and his direction within the provisionally assessed Bill of Costs, on the basis that until the Deputy has obtained the Deputyship Order, the Deputy is not officially the Deputy, and therefore does not have authority to undertake any General Management work regardless of the situation / P’s circumstances, and how urgently the deputy may need to start tending to P’s affairs.

Furthermore, it is only the costs of, and incidental to, the Application that can be claimed in a Bill relating to the application costs, prior to which the Deputyship Order has been obtained as per paragraph 27.8 of the SCCO Guide 2023, which states “The Costs Officer will treat the costs of the application for appointing a deputy for property and affairs, as ending on the issue date of the order appointing the deputy (which may be some time after the actual date of the order).  The Costs Officer will treat any costs incurred after the issues of that order as general management costs.”

Whilst it was not the result both Amy and the deputyship firm were hoping for, and Senior Costs Judge Gordon-Saker would not make a written judgment on this case, he did provide guidance to Amy on how this situation can be avoided by Deputies going forward. The Deputy can either:

• Claim General Management work in an Application Bill (if necessary) and, if picked up by a Costs Officer / Costs Judge, to adhere to the direction as detailed within the provisionally assessed Bill of Costs (i.e. make a retrospective application for authority to incur General Management costs prior to the deputy’s appointment); or
• At the point of making the Deputyship Application, the Deputy states a provision to be contained within the Order that reads along the lines of “the Deputy is entitled to claim any GM work for the period from the date of X (i.e. the date on which work was first undertaken on the matter) for reasons X, Y & Z until the Order appointing the Deputy has been obtained”.

At A&M Bacon Ltd we are committed to ensuring that deputies are fully supported in relation to all their costing needs, whether that be through drafting the initial Bill of Costs, preparing / advising upon appeals and attending Oral Redeterminations – we are here for you every step of the way!

Should you have any questions / queries arising from the above, please do not hesitate to contact us – we are always on hand to help.

Amy Avory, Costs Specialist.

14.08.2024