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Practice Note regarding Post-Death Costs in the Court of Protection
May 2024 saw the publishing of a new Practice Note circulated by Costs Judge James and Costs Judge Whalan. This all related to the dealing of costs after P has passed away.
Re TG
This was a recent case that was heard by Costs Judge Whalan. We have been given to understand that whilst a formal written judgment will not be forthcoming, the outcome of the issues raised within this case will be disseminated to the Costs Officers down at the SCCO. The case dealt, inter alia, with three key issues:-
Whether time spent by the deputy, charged at grade A, for approving payments was reasonable;
Whether time spent in reviewing P’s accounts for the purposes of SRA requirements was payable by P (and to what extent) and;
Whether time spent for reconciling P’s accounts on a monthly basis was reasonable (and to what extent)
Costs Judge Whalan found that there was nothing to preclude a grade A deputy approving payments. However, further guidance obtained suggests that such approvals would need to be over and above many of the routine areas of expenditure. The Costs Judge cited the example of care fees, for which a budget would have been set and agreed upon by the deputy. The Costs Judge would not expect further time to be spent approving such payments. However, if an ad hoc request for a payment was made, reasonable time could be claimed and recovered for considering these requests and authorising payment. It should be noted that the deputy’s time was limited to three minutes for such approvals and was allowed on this basis.
The Costs Judge further found that time spent in reconciling P’s accounts on a monthly basis to satisfy
SRA requirements was not an overhead, and was work
the deputy was required to perform in their duties as such. The Costs Judge allowed between 1 and 2 units for this work, although did make the comment that any time claimed over and above 1 or 2 units would need to be considered on a case-by-case basis.
Finally, the Costs Judge agreed with the view that it was reasonable for the deputy to spend time reviewing P’s accounts, for the purposes of calculating cashflow and ensuring sufficient funds were in place to cover P’s upcoming expenditure demands.
Whilst there was not as much clear guidance provided in relation to what might be considered reasonable for each of these items, the Costs Judge commented that it was incumbent on the Costs Officers to guard against excessive claims being made in this regard. That said, the vast majority of time claimed for these items was allowed on appeal.
Well, that’s it for another of my costs round ups. I do hope you have found some of the information contained within this article to be useful and/or of interest.
I often find that, like so many things in life, many issues in relation to costs are not simply black and white and there are so many shades of grey in between. Do feel free to get in touch with myself or my friendly team should you have any queries in relation to this, or any other costs related queries and we will be more than happy to discuss further with you and see how we can help.
Prior to the publication of said note, 1 practitioners were able to agree costs with
the personal representatives or executors
to P’s estate, where such were independent
from the deputy’s own firm. In the event that
costs could not be agreed or if the executors
of the estate were affiliated with the deputy’s
firm, further authority would need to be 3 obtained to have any outstanding general management costs assessed, as it was felt
that the authority to have the costs assessed under the terms of the deputyship ceased, upon P’s passing.
The practice note published by the Senior Courts Costs Office (SCCO) provides a degree of clarity in relation to how the remainder of general management costs should be dealt with, at least for those costs incurred during P’s lifetime.
The good news is that for the outstanding general management costs incurred during P’s lifetime, no further order or directions are required, and the SCCO will assess these costs under the terms of the original deputyship order.
What isn’t clear, at the time of writing at least, is whether one remains able to agree these outstanding costs with an independent executor.
Further, clarity is required from the SCCO
or the Court of Protection as to what can be done to recover any costs that are incurred following P’s death. The Practice Note
itself states “Since the COP’s substantive jurisdiction end with the death of P, the COP has no jurisdiction to make orders about costs incurred after death of P. COP Rule 19.11 is expressly limited to costs incurred during the lifetime of P for this very reason”.
I am uncertain, at this time, what the prospects of success would be in relation to making an application to the Court of Protection for any outstanding “post-death” costs to be assessed. I would argue that it could be shown to be in P’s best interests (or in the best interests of P’s estate) that these remaining “post death” costs be assessed and that Rule 19.2 provides for this, given these issues are in relation to P’s property and financial affairs.
As a member of the Association of Costs Lawyers and their special COP Interest Group, these are questions that have been raised with the SCCO.
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