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Court of Protection - Costs, Estimates and Top Tips by Sponsor bSquared
Court of Protection - Costs, Estimates and Top Tipsby Sponsor bSquared
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Costs estimates are nothing new in civil legal matters, although with the implementation of costs budgeting back in April 2013, they have become somewhat of a rarity in litigation claims.
This is not the case within Court of Protection matters, where practitioners are now expected to inform the Office of the Public Guardian (OPG) with their estimated fees for the forthcoming general management year. Introduced in Spring 2016, the OPG105 provides the OPG with details of practitioners' costs for the previous year and the estimated costs for the forthcoming deputyship year.
It is only now that we are starting to see the initial estimates provided by practitioners (the year for which the original estimates were provided are now concluding). Here we share some early observations, and provide some top tips as to how you can ensure you can accurately estimate your costs, and what can happen if you underestimate.
The OPG was charged by the Ministry of Justice (MoJ) to review professional deputyship costs and, in particular, look at how such costs are reviewed and monitored. This was amidst the plethora of changes that were being implemented throughout the civil legal landscape following the Jackson report. Whilst they stopped short of introducing fixed fees or tariffs for CoP matters, the result was that costs would be looked at by the OPG more closely and the need to estimate one’s costs was introduced.
Practitioners are now required to provide the following information within the OPG105:-
1. Details of whether the previous year’s costs were fixed or assessed
2. The amounts paid to the professional deputy
3. Reasons why a previous costs estimate has been exceeded by more than 20%
4. Whether fixed costs or assessed costs will be utilised for the forthcoming management year
5. Details of fee earner hourly rates to be used
6. Estimated costs for the forthcoming year which includes a breakdown of costs for contact with P, their family and friends, contact with case managers and care providers, contact with other parties and work on documents
7. Practitioners are also invited to consider providing any further information to the OPG, which justifies the figures within this report.
Top Tips for completing the report
The completion of points 1-4 above will be relatively straightforward as they relate to costs that have already been incurred.
1. We recommend you use the guideline hourly rates as set out by the SCCO, both when completing the OPG105 and when your annual bill is drafted. It is rare the SCCO will depart from using these rates for normal general management matter; although you should bear in mind there are occasions where the court will entertain allowing enhanced rates. The SD9 document (Professional Deputy Costs Guidance) published by the OPG/SCCO contains more information in relation to hourly rates.
2. It can be difficult to predict the time that will be required in relation to estimating forthcoming costs; we recommend reviewing past bills if they are to hand (there will be at least the first year of general management as at the present time you are not required to submit an estimate on appointment), and this can be a useful tool in helping to predict the time that will be required on the case.
3. Think carefully about the case; is it likely to continue in the same vein as years gone by, are matters more settled, do regular crises arise and is it likely additional costs will be incurred, what further issues need to be progressed?
4. When reviewing previous bills we recommend that you look at the costs claimed, rather than allowed.
5. Be careful not to over-estimate the costs; the court will not only be interested in matters where costs estimates have been exceeded, but will also look to see if practitioners are submitting inflated estimates in order to protect themselves.
6. We encourage the completion of the section inviting practitioners to justify their estimates; this will help to minimise the chances of your being criticised for inflating your estimate.
7. Set up WIP alerts; most modern case management/time recording systems enable you to set up an alert so that when you are approaching your limit on estimated costs, you will be alerted.
8. Following on from the above point, we recommend you contact the OPG as soon as possible and update your estimate, setting out the reasons for the increase, as you would any client. We have, however been advised that the OPG currently are unsure what to do upon receipt of such information. However, it will assist if you are able to demonstrate to the court that you have taken steps to revise the estimate and have been conscious of the estimate throughout.
9. Ensure that your completed OPG105 is lodged with the bill; this will save any time during the assessment process and will also enable you or your costs draftsman to identify any issues relating to estimates being exceeded and address them prior to assessment.
10. Remember; you have a 20% grace and additional information need only be provided to the SCCO if your estimate is exceeded by more than this amount. In such cases, where costs claimed exceed the estimate by more than 20%, it will be necessary to provide details for the reasons why. If this is not included, it is likely costs will be restricted.
The new rules in relation to costs estimates remain in their infancy, however, we continue to monitor both the estimates and the impact of them on assessment. The fundamental rules remain that your costs need to be reasonable and bear a resemblance to the matters in issue; they have to be proportionate.
We do hope the information within this article provides useful insight and information as to how you can approach these estimates.
However, you should have any further queries, or simply wish to discuss any costs queries you may have, please don’t hesitate to contact us.
bSquared
0117 930 8484
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