Costs officers of the Senior Court Costs Office regularly refer to cases when undertaking their assessments in Court of Protection matters and below are three cases which are routinely referred to upon provisional assessment.

HOURLY RATES

In the case of Smith & Others [2007] EWHC 90088 (costs) County Court guideline rates were claimed within the bill of costs by the Appellants. The Defendants argued that lower rates should be applied due to the non complex and routine nature of the work undertaken.

The matter was heard by Master Haworth on 23 October 2007.

Master Haworth took into consideration that the Appellants had to take on additional responsibility, skill and expertise on the work undertaken, due to the patient’s inability to provide instructions and the need to act on their own initiative.

It was determined that Court of Protection work should attract the same rate as other legal matters and County Court guideline rates should be applied. It was also confirmed that complex and difficult matters warranted enhanced rates, although it should be noted that the starting point would be the guideline rates.

BLENDED HOURLY RATES

In the case of Yazid Yahiaoui – January 2014

Master Haworth held to his judgement in Louise Smith & others. However, he also determined that the application of “blended rates” may be reasonable in some circumstances. The blended rates were deemed suitable for work which could be carried out either as a team or by an individual that spans work that could reasonably be handled by two different grade fee earners.

THREE MINUTE UNITS

In the case of Leighanne Radcliff - December 2004 the Deputy appealed the reduction of routine letters to 3 minutes each.

The matter was heard by Master O’Hare on 20 December 2004.

Master O’Hare referred to CPR 44 PD 4.8 to identify routine communications as emails, letters and telephone calls, which because of their simplicity should not be regarded as letters or emails of substance or telephone calls which properly amount to an attendance.

It was determined that routine communication items of no substance should be allowed as 3 minute units although communications of substance would continue to be allowed as 6 minute units.

This approach is confirmed in the good practice guidance produced by the Office of the Public Guardian in paragraph 9.3.3.

RECOMMENDED APPROACH TO MAXIMISE COSTS

Although County Court Guideline rates will be allowed on all Court of Protection claims, there is scope for an enhanced rate. This could either be claimed across the entire bill, or could be limited to specific issues. Specific issues may be a risk to the fee earner’s health and safety whilst attending a patient, or attending out of hours. Specific issues should be highlighted where applicable within the file of papers to justify the enhanced rate upon assessment.

Routine communications should be delegated to Grade D fee earners wherever possible to minimise the costs claimed.

Routine work should be delegated where possible in order to avoid the possibility of blended rates.

Paula Burnett

Please note: The Guidance and interpretation on these articles are merely a summary of our interpretation of the subject. We accept no liability for any misconstrued understanding of such issues and interpretations, nor any loss or damage sustained as a result of any reliance upon such views.