Court of Protection: Time for enhanced rates?
The Guideline Hourly Rates (GHRs) taken from The Senior Courts Costs Office (SCCO) “Guide to the Summary Assessment of Costs” are the most practical rates to use when submitting an assessment – rates which the Court rarely depart from. James Rees, Court of Protection Supervisor, explains when Court of Protection practitioners should consider using enhanced hourly rates and the best approach to take to ensure you maximise your recovery.
There has been increasing concerns with the GHRs, which were initially updated either on a yearly or two yearly basis from 1999, until they were frozen in 2010 when the final report was published. The Master of the Rolls announced that the GHRs were to be frozen as there was no prospect of proper evidence being produced to justify a revision:
“It would be wrong to make decisions as to appropriate GHRs which are not based on sufficiently robust evidence. It is imperative that reliable evidence is obtained”.
Whilst at this time, it was considered that this was not necessarily bad news for practitioners, as some had expected the suggested rates to be declined, it has now been nearly 9 years since they were last reviewed.
The problem which has arisen is that many factors have increased during this time. Inflation is the main issue. The cost of living has gone up and fixed fees have risen. Efficiently running a law firm now costs considerably more than it did 9 years ago and therefore continuing to work under the GHRs published in 2010 is not considered practical to this day. Is it right to say that there is now evidence to prove that the GHRs should be reviewed?
Practitioners will have inevitably sought to argue that these rates should be uplifted. However, this cannot simply be done by a request to the Court as this is the approach only to be taken by the Master of the Rolls.
Claiming an enhanced hourly rate
It may sound simple enough but there are various methods and factors which should be considered when claiming an enhanced hourly rate. Before claiming, it is advised that certain measures should be considered and answered, for example:
- Size of P’s assets
If P has an estate of around £20,000, is it reasonable or proportionate to claim an enhanced rate which will decline P’s estate more rapidly? What if P’s assets are substantial? There is definitely an argument to suggest that enhanced rates should be proportionate to the level of funds in question. Therefore if you are dealing with a substantial high value estate you may be more likely to recover enhanced hourly rates at assessment.
- Complexity of P’s assets
The complexity of the accounts to manage can determine the reasonableness of applying an enhanced rate. If the deputy is dealing with complex estates such as international assets, Inheritance Tax (IHT) affairs, a vast amount of stocks and shares and investment and business interests, this may promote the need of applying an enhanced rate.
- Contentious nature or difficulty of the case
This is one of the key areas to determine whether an enhanced rate should be applied. Dealing with family disputes, proceedings involving other areas of law and managing expectations of disruptive behaviour or lack of communication are examples of a complex and difficult case.
It is considered that such tasks can be problematic and unsettling towards the progressive nature of P’s affairs and therefore an enhanced rate may be justified given the difficulties demonstrated.
Following the publication of the SD9 form by the Office of the Public Guardian and SCCO, it was indicated that allowances could be made should cases involve ‘exceptional circumstances’. It could be argued that certain difficulties as highlighted above, could fall under the heading of ‘exceptional circumstances’ thus increasing the likelihood of recovering an increased hourly rate.
How to apply an enhanced rate?
Applying an enhanced rate is not as simple as claiming the next rate above. For example, if you have a Grade D fee earner wishing to apply an enhanced rate, it does not necessarily mean claiming a Grade C rate. In our experience this is not good use of an enhanced rate and is often disputed by the SCCO.
Finally, what to remember?
GHRs are just ‘guidelines’ which means you have every right to depart from them on reasonable grounds, however, this does not necessarily mean that the enhancement will be agreed by the Court on assessment. Applying an enhanced rate is profitable and appealing, however there are a few reminders to note.
- Don’t apply enhanced rates to everything
Whilst the recovery of an enhanced rate may be considered difficult to achieve, there are certain ways which can increase recovery by the SCCO. It is key to ensure that enhanced rates are not applied to everything. For example, if an enhanced rate was applied for preparing payments, it is strongly considered that this will not be accepted by the Court following recent guidance. Therefore, consider certain tasks and work which reasonably shows the enhanced rate being applied.
- The higher the rate, the harder to recover
An enhanced rate may be applied to the four different grade of fee earners. However, it must be noted that higher the rate goes, the considerably harder it will be to recover them. The enhanced rates are being recognised throughout the SCCO as they accept that a large amount of work is being undertaken by lower grade fee earners and that the rate applied recognises the type of work and involvement shown by these fee earners.
Maximising your costs recovery
Here at bSquared costs law we have seen positive and strong recoveries when applying enhanced rates. Our team of dedicated and knowledgeable costs draftsman are experienced in applying enhanced rates when appropriate and securing maximum costs recovery. The team are also able to advise and contest rejected enhanced rates should this be necessary.
Contact us for more information or advice on what we consider to be a reasonable enhancement for your case.