COP Deputies – Beware if you have (or will) incur costs outside the scope of your deputyship orders
ACC & Others – Requirements of the Deputy in relation to anticipated and on-going contentious work and conflicts of interest; all applications for general or specific authority to be submitted by 1 April 2021 to ensure effective recovery of incurred costs
The OPG has recently published new guidance relating to Professional Deputies and continued obligations for adherence by 1 April 2021. Following the case of ACC and Others (handed down 27 February 2021), the Senior Judge of the Court of Protection HHJ Hilder, issued guidance addressing a number of points that will directly affect how court-appointed deputies should act when outside the scope of the orders appointing them. The judgment contains an incredibly helpful summary appendix.
The judgement outlines:
Deputyship guidance for contentious litigation cases, and;
The management of conflicts of interest and obtaining legal services
The guidance makes clear that existing Deputies are expected to continually be fully aware and understand the limits of their own authority and always be completely transparent about any potential conflicts of interest.
Permission from the Court should be requested for any ongoing and future work which falls outside the realms of the authority of a deputy as outlined in the Deputyship order. Deputies must apply to the Court of Protection for authorisation where the delivery of services to P may constitute a conflict of interest and costs are expected to exceed £2,000 plus VAT. If general authority has been provided to instruct someone else (outside your own firm) the Deputy must obtain 3 quotes and make a ‘best interests’ decision before making an application for authority if the costs are likely to exceed £2,000 plus VAT.
Retrospective authorisation is expected to be sought from the Court of Protection to proceed with any contentious litigation work carried out on behalf of the client prior to the making of the application (date of judgment). This includes litigation on behalf of P and/or using P’s funds to reimburse a third party for work carried out on P’s behalf. Ordinary non-contentious tasks such as property conveyancing, managing businesses, preparing tax returns are within the general authority of property and financial affair deputyships, so there is no need to seek additional authorisation.
The OPG states that they require applications to be made in respect of any unauthorised work started or ongoing since the date of judgement by 1 April 2021.
There are of course concerns with the requirements following the judgment that this will lead to inevitable delays in progressing litigation where matters have to pause whilst orders are awaited as no work can continue on a matter from the date of receiving the Letter of Response. At least under Welfare deputyships, urgent action can be taken and retrospective authority can be sought; however caution should be heeded – if urgent action could be referred to a Local Authority on welfare issues, then that should be the course taken.
If you think you may fall in this category – we would advise you consider the guidance from the Professional Deputies forum and the judgment from DDJ Hilder is a must read for all court Deputies and COP practitioners providing an overview and reminder of the obligations and scope of different types of orders for Deputyships. It is also key to ensure that if you are working under the scope of a property and financial affairs order with litigation on-going, that issues don’t fall into the Welfare category whereby a new order will be required (welfare orders of course being subject to stricter limitations/scope).
The guidance arising from this judgment also makes the application process even more arduous upon the Deputy to carry out further levels of work prior to being granted Deputyship and consider issues that may not be known at that time. It will be incumbent upon experienced costs draftsman to be aware of the further duties now imposed upon deputies and ensure that these costs are recovered in the annual management period and supported clearly in the narratives where the issues arise and initial consideration of instructions to external (or internal) solicitors are recorded appropriately. It also continues to remain the position of your instructed costs expert to advise where costs claimed are outside of the scope of any orders and specific authorities granted.
Whilst retrospective authority is not considered necessary generally for those cases completed prior to 27 February 2021, beware and consider the circumstances of your case. Case-by-case reviews will be undertaken.
It seems that this judgment also seeks to put more onus on the OPG to supervise the role of the Deputy and ensure that all Deputies are working within their scopes of authority. Non-compliance will more than likely affect your costs recovery.
To summarise, if you anticipate using services exceeding £2,000 plus VAT, you must seek specific authority from the OPG prior to incurring the fees. If already incurred, retrospective authority must be obtained. When completing your initial application for Deputyship, you must consider whether general authority needs to be obtained with hindsight. Thereafter, you will need obtain 3 quotes for work and make a ‘best interest’ decision prior to undertaking the work.
As costing experts, we are aware of the frequent links between litigation and deputyship work and are experienced at separating the costs between the two ensuring the best recovery for you and your protected party and advising on the cost limitations of court orders.
At R Costings, we are experienced in dealing with cases crossing over from contentious litigation, property and financial affairs, welfare deputyships and family litigation. If we can assist you with your costing queries, or assist in the preparation of your complex recovery of costs, please contact us. You can email Kate Benn at Kate.rcostings.co.uk
All applications for any work ‘started or ongoing’ since the judgment, must be made by 1 April 2021; non-compliance is not an option.
ACC & Ors (property and affairs deputy; recovering assets costs for legal proceedings) [2020] EWCOP 9 (27 February 2020 )
Kate Benn – Business & Litigation Manager at R Costings Ltd