The new Practice Directions, supplementing Part 19 of the Court of Protection Rules 2007 came into force on 1 April 2017. However, there are still questions being asked about them. Here Kim Parker of Civil and Commercial Costs Lawyers explains the effect of those changes.
The Practice Directions relate primarily to solicitors and public authorities appointed to act as Deputy; as well as providing updates in relation to fixed costs, there are changes to the practice direction relating to payments on account and the introduction of costs estimates.
Payments on account
Previously, the yearly limit that a Deputy could take was 60% for the first three quarters of the year in respect of general management work. That limit has been increased to 75% by way of 3 quarterly interim bills up to a maximum of 25% of the estimated annual management charges. It should be noted that the practice direction states that the payments on account should relate to costs which are proportionate and reasonable, taking into account the size of the estate and the functions they have performed.
Costs Estimates (Form OPG105)
By way of a reminder under the Good Practice Guidelines from the OPG the Deputy is now required to submit an estimate of next year’s general management costs (Form OPG105) when submitting the Annual Deputyship Report.
The completed Form OPG105 must be attached to next year’s general management bill of costs when submitting for assessment to the SCCO.
The format of the estimate follows the old Form H i.e. Part 1 (costs incurred), Part 2 (an estimate of work to be carried out). It should be noted that the requirement is for an estimate only – it is not a costs budget or a cost cap.
Deputies should be aware that it appears the ‘old’ 20% rule from PD 6.5 (a) applies i.e. if the estimate has been exceeded by 20% or more, an explanation has to be provided at page 3 of the OPG Form.
Accordingly it would be prudent for the Deputy to liaise closely with their Costs Lawyer in the preparation of the estimate to avoid a reduction at detailed assessment.
While the ‘Good Practice Guide’ states that estimates are not binding upon assessment; in practice it is envisaged that PD6.5(a) ‘if the Court considers the reasons provided to be insufficient, the difference (between the estimate and the Bill of Costs) may well be disallowed as unreasonable or disproportionate’ will be applied.
Ultimately it will be for the SCCO to assess the professional Deputy’s costs at the end of the reporting year and for the Deputy to explain any variances to them, with reference to the estimate.
Kim Parker - Costs Lawyer and Manager of the Commercial and Clinical Negligence Teams at Civil and Commercial
If you would like to speak to Kim or the rest of our experienced team about this or any other Costs Issue, give us a call on 0207 842 5950 or send us your enquiry online.