What should you look for in a Court of Protection Costs Draftsman?

You are most probably aware that there are any number of costs draftsmen and drafting firms out there offering their services. The decision is which one to choose and what criteria to consider when looking for someone to draft your bills in the Court of Protection.   Most adverts offering costing services refer to costs recovery, charges and turnaround times. Which is to be prioritised and are there other factors to be taken into account?

The charging rate is, prima facie, an easy way to compare providers. Whether a firm charge 7% or 5% of profit costs is clear to see. The temptation to choose the ‘cheaper’ provider may be great, especially if the accounts department are involved in the decision! This may well be a false economy. Arguably, recovery of your costs is a much more important factor, with the very real potential for a small difference in draftsman’s fee to be significantly outweighed by the difference in recovery of your costs. At A&M Bacon, our charge is based on a percentage of recovered costs, with our invoice being raised after the bill has been assessed, thereby also assisting with your cash flow.

So, what determines successful recovery of your costs? Though a less obvious or measurable way to compare draftsmen, I would argue that this has to be the most important factor to consider. Recovery rates are greatly affected by the quality of your draftsman and it is imperative that your COP bills are prepared by specialist providers. Draftsmen, who regularly prepare bills in the Court of Protection, are well aware of the rules and ‘quirks’ of the SCCO. From seeing the outcome of a large number of assessments, and keeping up to date with recent case law, they know what can and cannot be included in the Bill. That said, there will always be some items of claim which may or may not be recovered at assessment, depending on the ‘direction of the wind’. It is important that your draftsman draws your attention to such items.

A good draftsman will provide detailed advice when returning the draft bill to you, including highlighting ‘at risk’ items and any further action required by you. This might include your draftsman preparing a schedule of missing file notes, so that any missing notes can be traced and added to the file before filing for assessment. It is important that your draftsman prepares a strong narrative which sets out the background to the matter and fully justifies the costs incurred. A good draftsman will highlight if costs have exceeded the costs estimate by more than 20% and will attempt to justify the same in the narrative. The costs officer should get a good first impression and be confident that the draftsman ‘knows his art’, before turning to the individual items of claim (well begun is half done). It is worth considering the instruction of a specialist Court of Protection draftsman just for this element of your practice’s work.

Draftsmen often highlight their turnaround times and of course this is important too. What is disappointing however, is if the stipulated 3 weeks, or whatever it may be, is not adhered to. Instructing a drafting firm with a number of COP specialists means there is less chance of them getting ‘swamped’ and not sticking to deadlines.

In addition to the factors mentioned above, there are other factors that may affect your choice of draftsman. ‘After sales’ service should also be considered. Once your bill has been assessed, does your draftsman offer to complete the re-calculation of the bill, including checking the costs officer’s figures throughout? (You may be surprised how often there are errors made in the cost officer’s calculations). Does your draftsman also complete the bill summary and provide advice on the assessment? Clearly this is a useful service, especially if it does not lead to the addition of any further charges. Your draftsman must have the experience and knowledge to advise when an assessment should be challenged and be able to prepare an appeal to the SCCO.  Occasionally, solicitors like to keep their fingers in the ‘costing pie’ but, if this is not for you, can your draftsman offer a full ‘cradle to grave’ service including e-filing your bill and documents for assessment?

Clearly a good working relationship is required with your draftsman, who should be actively trying to make your life a little easier! You need a draftsman who gets back to you quickly and prioritises preparing any amendments by return.

Finally, in this modern, ‘small’ world, you don’t need your draftsman to be located next door.  Location is of little consequence, especially if your chosen draftsman can provide a courier service to promptly collect and deliver your files.

Choosing your COP costs draftsman should be done with care to ensure that they can meet all your needs and help maximise your costs recovery. Your costing service provider should be reviewed regularly, as any other expense or service provider. Test the water, there’s nothing lost in sending a file to a new provider and seeing how you get on.

Jenny Walmsley – Costs Lawyer and Court of Protection Costs Specialist