Litigation v General Management

We often see litigation support costs being disallowed and/or reduced on assessment on the basis that such costs should be included within the litigation bill. However, there are some instances where these costs can be recovered as general management costs.

This has become more of an issue due to the ongoing delays with the Senior Courts Costs Office (SCCO). It can now take over a year to receive assessed Court of Protection bills from the SCCO. This therefore means that the litigation claim can be settled in the meantime, with litigation bills being prepared soon after and costs agreed with the defendant to that claim on an inter-partes basis. If the litigation claim is settled whilst awaiting the Court of Protection assessment, and any litigation costs incurred by the deputy are disallowed within that Court of Protection assessment, these costs can become lost. It is therefore prudent to ensure that all costs are claimed correctly at the outset.   This ensures all your costs will be recovered, which can sometimes be substantial.

This article looks to identify what work falls under your usual general management and what might be interpreted as litigation work and considers the further issues that will need to be addressed going forward and offers practical tips on how best to proceed.  This will be of interest to professional deputies, and those assisting a professional deputy.

It can be tricky to establish what constitutes general management work and what constitutes litigation work, but we will explore this further below!

The case of Hewitt (2014)

In the unreported case of Hewitt, Master Haworth considered the costs of the deputy liaising with the litigator, which were not allowed on provisional assessment. The informal appeal was not successful and the costs officer maintained her view that these costs did not belong in the general management bill.

The case was therefore heard before Master Haworth. It was argued by the deputy that if there was not a Court of Protection order in place, then the litigation solicitor would request any information required to progress the claim from the claimant. The deputy ultimately stands in the shoes of the claimant/P.

Master Haworth held that costs which relate to the ongoing litigation claim are recoverable litigation costs within the course of that litigation. Master Haworth therefore maintained that the costs were not recoverable as part of the general management charges. Only “pure” general management costs should be included within the general management bill.

Litigation support costs

There is no specific definition as to what constitutes litigation support costs. There is also no specific case law on this, however, the case of Hewitt and guidance handed down by Master Haworth, has assisted in identifying costs which may fall under this category. Although this can still be a grey area.

It appears that litigation support costs are costs relating to supporting the litigator where there is an ongoing litigation claim pursued on P’s behalf. This, we believe, is due to the fact that the SCCO considers it to be in P’s best interests for these costs to be included within the litigation bill (and paid by the defendant), rather than within the general management bill (and paid from P’s award).

In our view, examples of litigation costs are as follows:-

• Providing information and documentation in support of an interim payment request.
• Providing evidence to the litigator in respect of care costs with a view to recovering these as part of the litigation.
• Drafting schedules of projected deputyship costs for the purpose of recovering these as part of the litigation claim.
• Attending the JSM (however, some time spent can be recoverable if this relates to the deputy advising P/P’s family on the management of P’s award (see below)).
• Any work which helps to maximise the claim being pursued on behalf of P.

If you are carrying out work which would normally be done by a claimant with capacity then it is likely that these costs will fall under the ‘litigation support’ category and will be disallowed under the general management bill.

General Management costs

As above, it can be a grey area to work out what constitutes general management costs, and therefore which costs should be claimed in the general annual management bill.

In our view, examples of general management costs are as follows:-

• The deputy liaising with the litigation lawyer as to the recoverability of an item requested by the case manager, prior to purchasing this. This assists with making a best interests decision as to whether to purchase the particular item, or not.
• The attendance of the deputy at a JSM, insofar as the time relates to the deputy providing advice to P/P’s family on the management of the award. Time can and should be apportioned to ensure that only general management time is claimed within the Court of Protection bill.
• Attendance at the MDT meeting where the attendance of the deputy is necessary and in P’s best interests (and insofar as the deputy’s attendance is not for the purpose of the litigation claim, but rather to discuss the financial aspects of P’s ongoing care needs).

How to maximise your costs recovery

• Costs can be apportioned. This can be done where it is considered that the costs relate to both annual general management costs and litigation support costs. This will assist with both the Court of Protection costs assessment and in the litigation cost negotiations/assessment.
• Open a separate file to record your litigation support costs – this way your general management file will not include any litigation costs and this will assist with interim billing. This will also assist with providing details of these costs to the litigator as well.
• Review your retainer – as you will be attempting to recover litigation support costs on an inter partes basis it may be that you can claim and recover an hourly rate higher than the guideline hourly rates usually allowed by the SCCO. However, it is the view of Master Haworth that higher rates will only be allowed in exceptional circumstances.
• Keep the litigation team updated – your litigation costs will need to be included within the costs budget to ensure the same are recoverable! It may be necessary to revise the budget if the costs budget was filed prior to the deputy’s involvement.
• Costs which clearly fall into the litigation category need to be claimed within the litigation bill. Where it is less clear, costs can be recovered as a head of claim within the special damages claim. If there is any doubt, we would suggest including the costs in the litigation bill.
• Costs can be included within the litigation bill as a disbursement or as profit costs. If you choose to include these costs as a disbursement, we strongly advise that a breakdown of these costs is sill provided to justify the costs claimed and to assist the parties with costs negotiations and the Costs Judge if an assessment is required.

At A&M Bacon, we carefully consider each time recording entry and will provide you with a separate schedule providing details of any costs which we consider may fall under the category of litigation support costs. This will assist you in separating those litigation costs from the general management costs and these schedules can also be provided to the litigation team for inclusion within the litigation bill of costs.

We also provide a detailed training session in relation to these issues.  This is a workshop style session that lasts around an hour (depending on the nature of the questions and queries raised) and this can be held in person at your offices or online.  Do feel free to get in touch if you would like to find out more.

We do hope you will have found this short article to be of interest.  Should you have any queries in relation to this or any other costs-related matter, please do not hesitate to contact us.

24.09.2025