Court of Protection Costs: Revisiting the importance of the content in the narrative of the e-bill

This article will be of interest to professional deputies and/or those assisting a professional deputy and those who work in the Court of Protection areas of law.

As ever, we remain busy at A & M Bacon in ensuring we maximise deputies’ costs recoveries. Should you have any queries following this article, please do not hesitate to get in touch with us. Our friendly, yet professional team is always happy to assist.

My colleague Jenny Walmsley looked at, and shared her experience, of the importance of a detailed narrative for the successful recovery of costs back in April 2020. Whilst coming from a lengthy costs background (undisclosed), I only commenced drafting Court of Protection bills towards the end of 2022. From personal experience gathered, thus far, I consider it again important to stress the importance of the bill narrative whilst considering its relationship to CPR 44.4(3) as discussed further below.

We are all conscious of the delays being faced in the Senior Court Costs Office (SCCO), due to the level of cases being received. The update received from the SCCO on 4 September 2023, was that the Costs Officers were currently being assigned bills of costs for which the supporting files were received around the end of October 2022.

Most recently, Judge Jennifer James recently provided the following interesting statistics:-

• Nearly 75% of bills before the SCCO are Court of Protection matters, compared to less than 50% a decade ago.
• In 2022 some 9,188 assessments of Court of Protections bills were carried out, compared to 5,598 in 2013.

I would also add here that in PLK & Others [2020] EWHC B28, Master Whelan referenced that the SCCO were processing over 8000 COP bills annually. Therefore, there has been a further circa 15% increase in COP bills being received at the SCCO in a two-year period.

Possible explanations, by way of example, for such an increase were suggested by Judge Jennifer James as:-

• An aging population having an impact on a greater number of people who may lose capacity
• Deputies electing for detailed assessment rather than taking fixed costs, which have been set at a relatively low level over a long period of time and have only increased periodically for inflation.

The judge noted that often bills lodged did not address either the value of the protected person’s estate or their annual income. She advised that “It is important that the court is provided with a short summary setting out the background and history of each case, together with the work that has actually been carried out and which is the subject of the bill”.  There is, of course, now a separate space within the COP E-bill for us to detail the value and nature of P’s estate.

Most readers will be familiar with the case of PLK, as touched upon above, which looked at the method of the hourly rates claimed by Deputies and, in particular, whether those rates should reflect commercial realities in 2020.  However, we can also consider the importance highlighted therein, of having regard to the Civil Procedure Rules and in particular CPR 44.4(3). Court of Protection costs are assessed by reference to the relevant factors set out in CPR 44.4(3) as applied by rule 19.6 of the Court of Protection Rules 2017.  The relevant factors to COP listed in CPR 44.4(3) are as follows:-

(b) the amount or value of any money of property involved;

(c) the importance of the matter to all the parties;

(d) the particular complexity of the matter or the difficulty or novelty of the questions raised;

(e) the skill, effort, specialised knowledge and responsibility involved;

(f) the time spent on the case;

(g) the place where and the circumstances in which work or any part of it was done.

As noted by Master Whelan in PLK (paragraph 24), the vast majority (certainly over 95% of the total) of bills are assessed by Costs Officers. “They comprise a specialist team that has amassed considerable experience in COP costs. They also have the benefit of mature leadership and attentive judicial oversight. Yet the Costs Officer’s general experience is limited necessarily, so that it cannot really be said they have the broad “judicial experience” in applying CPR 44.4(3)…..”

Master Whelan also acknowledged in PLK (paragraph 26) that “It is clear that COP work comprises a discrete area of professional practice, so that Deputies tend to work (over many years) in this area exclusively. The work is often (but not invariably) complex and the amount of money or property involved in the management of a protected party’s assets is generally high. Protected parties can be difficult and time consuming clients and this often imposes a considerable burden of responsibility on Deputies. It is likely that the role of Deputy has become more complicated over the years, particularly after the implementation of the Mental Capacity Act 2005.”

Having regard to the delays faced in the SCCO due to backlogs, the increasing number of assessments being received, and considering the factors, as per CPR 44.4(3), that the Costs Officers should be looking at when undertaking the cost assessment, we can bring these issues together.

By providing a strong, informative narrative, we can assist the Costs Officers in their assessment, which may (i) speed up the assessment and (ii) maximise the deputies’ costs recoveries. By way of examples, if the Protected Party is non-verbal, which has led to a high degree of written communication, make that clear in the narrative. If the Protected Party needs a high level of hand holding and is contacting the deputy on many occasions, often out of hours, let the Costs Officers know. In the Bill of Costs for claims for routine calls, it will be impossible for the Costs Officer, without attempting to locate each and every file note for routine attendances, to know whether calls are those received in from the Protected Party or calls made out to them. If the Protected Party has large investments managed by an Independent Financial Advisor (IFA), stress the need for the deputy to give in depth consideration to the detailed reports. The IFA may have provided advice upon investments but ultimately it is the deputy who makes the final decision on investments in the Protected Party’s best interests.

By ensuring that we keep the relevant factors of CPR 44.4(3) at the forefront of our minds and basing the narrative around this framework, greater cost recovery may be experienced.

I also add that by providing the detail at the outset in the narrative, this may also assist should an informal appeal be required. For example, I have found that assessors can sometimes be harsh in reductions to time spent in the consideration of investment reports. If the assessor has already been provided with specific details in the narrative such as the complexity of the matters, the level of investments being managed, additional complexities with Russia’s “special military operation” in Ukraine, inflation etc. you can refer them to this fact when you, very respectfully, ask for a reconsideration of their decision.

I do hope the information provided here will be of assistance to practitioners.  As with many costs aspects, these issues are not always clear cut.  We are always happy to discuss queries that arise from practitioners during the course of your day-to-day work.

Kellie Barnes, Costs Lawyer

08/11/2023