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Senior Costs Judge issues Court of Protection practice note
The Senior Costs Judge (SCJ), Andrew Gordon-Saker, has issued a practice note on the ramifications of Master Whalan’s direction to costs officers handling Court of Protection (CoP) assessments to allow as reasonable rates 20% higher than those prescribed by the guideline hourly rates (GHR).
The SCJ noted that the ruling only applies to bills from 1 January 2018 onwards. “The judgment recognised that costs officers should exercise some broad, pragmatic flexibility when applying the 2010 GHR to the rates claimed and that, if the rates claimed fall within approximately 120% of the GHR, they should be regarded as prima facie reasonable.
“The judgment does not disapply or abrogate the indemnity principle. Consequently, costs officers will have no discretion to allow higher hourly rates than have been claimed. The judgment will be of relevance only where rates in excess of the 2010 GHR have actually been claimed in the bill.”
The practice note said a deputy could not withdraw or amend a detailed bill or substitute a new bill without the consent of the client or an order of the court. As the consent of a protected party could not usually be obtained, any application to withdraw, amend or substitute a bill would have to be made to a costs judge on form N244, supported by evidence that the indemnity principle has been complied with.
“Deputies are entitled to the informal re-consideration of bills provisionally assessed by a costs officer before the issue of a final costs certificate (FCC). They should note that any request for re-consideration designed to recover rates higher than those claimed in the bill is unlikely to be successful. Any application and any appeal made after the issue of an FCC can be made only to a costs judge.
“Costs officers will continue to have regard to the deputy’s terms and conditions of business, correspondence regarding hourly rates with the Court of Protection or Office of the Public Guardian, Form OPG 105 lodged with the bill, and the solicitor’s certificate on the bill.”
The practice note can be found on the ACL website.