Page 18 - PIC Magazine Issue 25 - Autumn-Winter 2025

COP COP COP COP
Head of Court of Protection
Paul Cruickshanks COSTS ROUND UP
at A&M Bacon.
Hello and welcome back to my regular round up of all things COP Costs. I am delighted to have
been asked to contribute, once again, to this publication and I hope the information provided below
will be useful for deputies and practitioners within the Court of Protection alike.
his time around I will be looking at some recent updates
that have arisen over the course of the year so far, to
various pieces of guidance that impacts the recovery
of your costs.
I’d thought I’d kick things off by taking a look at costs
associated with litigation support work (LSW), which arises
where a deputy is required to assist a litigator with providing
instructions, information and/or documentation to help
support the protected party’s (P’s) claim. I’ve been out and
about quite a lot this year delivering training on this very
subject and given the feedback I have received, along with
counsel’s advice obtained by the Professional Deputies
Forum (PDF) I thought it would be useful to provide a bit of
a summary. This might also be of interest to any litigators
reading too.
Then I thought we could have a look at the updated guidance
provided by the Offi ce of the Public Guardian (OPG) in
relation to deputies’ costs and fi xed costs and some of the
additional information they have provided there, which will
hopefully assist practitioners.
As ever, this article will be of interest to professional
deputies and/or those assisting a professional deputy and
to practitioners working within the Court of Protection.
Costs for Litigation Support Work (LSW)
I have, for a long time, been
advocating the view that the
costs of the deputy providing
assistance to the litigator
belong in the litigation bill,
as opposed to the deputy’s
general management bill.
This comes off the back of
unreported case law, where
Master Haworth, following a
formal appeal, took this view.
I do remember at the time
(we are going back to
around 2014 here by the
way!), I was surprised by
the judgment, but having
considered it further
over the years, given the
costs of the litigation are
payable in addition to P’s
compensation, this kind
of makes sense.
So what are the issues
here? Put simply, when
one attempts to seek any
costs of the deputy for
assisting with maximising
P’s compensation award
within the deputy’s general
management bill, the
likelihood is that the
Costs Offi cer will “disallow”
this time.
I have put the word disallow
in inverted commas above.
Historically, the Costs
Offi cers have tended to
zero rate such items and
direct them to be claimed
within the litigation bill.
When the SCCO was turning
around bills in 2-3 weeks
(as was the norm back then),
eff ectively this time could
be transferred over to a
new fi le and included within
the litigation bill once the
litigation was concluded and
the costs were being agreed
or assessed.
However, these days, there
is the real and distinct
possibility that the litigation
will have settled and the
costs might also have been
agreed before this outcome
is known. In such cases,
practitioners might be losing
out on valuable time and
costs spent in assisting the
conducting litigator, with no
second chance to properly
recover their time spent. It’s
therefore imperative to get
this right, from the very start.
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INDUSTRY EXPERTS
One of the diffi culties we
have is that there is no real
clear defi nition as to what
constitutes “litigation support
work” and what constitutes
“general management” work.
However, if I can off er one
top tip from this article, it
would be to question “why”
you are doing the work. If
the answer is to provide
information, documentation
or evidence in support of P’s
claim (which the claimant
would provide themselves if
they had capacity), then the
chances are that the work
belongs in the litigation bill.
Work such as providing a
witness statement to support
ongoing deputyship costs
(to be recovered as a head
of claim) is quite obviously
litigation work, as is the
collation and compiling of
care or case management
invoices to support these
heads of claim.
But what about when
you need to contact the
litigator to help assess the
recoverability of an item
that has been requested
for P? I would argue that
this belongs in the general
management bill, as it forms
the deputy obtaining advice
to help make a decision in P’s
best interests. This example is
not so clear cut.
It may be necessary or
appropriate to apportion time
relating to each aspect of
the work done, for example
when attending a meeting
with P and/or their family.
Some elements will inevitably
pertain to the ongoing
general management of P’s
aff airs, whereas some might
relate to advising on the
ongoing litigation.
Make it clear on your
attendance note that the time
is apportioned and clearly
set out that apportionment,
for example, 40% to the
general management side
and 60% to the litigation.
This will help ensure that your
time is recovered i) during
the general management
assessment and ii) will assist
in the negotiations and/or
assessment of the litigation
costs.
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