Leeds law firm Clarion has helped to win a landmark case that will result in a significant change to national guideline hourly rates for Court of Protection (COP) lawyers.
Master Whalan handed down the judgment on 30 September following a hearing on 26 May, indicating a 20% increase to the rates payable in COP cases.
Four professional deputies from Wrigleys Solicitors, Freeths, Boyes Turner and Gillhams Solicitors acted to bring the issue before the Senior Courts Costs Office, highlighting that the Guideline Hourly Rates (GHR) had not changed for 10 years, but factors such as inflation, increasing workload and growing responsibility on professional deputies, had caused concern about the sustainability of COP work.
Clarion prepared the four bills of costs for submission, claiming the GHR of 2010 plus a percentage uplift to reflect RPI inflation (of approximately 31%) between 2010 and 2019.
Stephanie Kaye, who leads Clarion’s COP costs team, commented: “This outcome is very welcome news for COP practitioners, providing overdue ratification for the vital work they conduct. Importantly, the outcome will mean that this crucial area of work continues to be sustainable.”
“We are proud to have been a part of this case. We will be applying the 20% uplift to all cases going forward to ensure COP lawyers recover their fair rates, and are happy to revise existing bills which have not yet been assessed to reflect the changes.”
A directions hearing took place on 17 April and the parties were asked to produce evidence in support of the claim. All four deputies, Clarion and willing members of the Professional Deputies Forum produced evidence, further reinforcing that the 2010 rates were not fit for purpose.
Richard Wilcock of Exchange Chambers represented the parties at the final hearing, and relied on the relevant factors in the Civil Procedure Rules, the GHR Review Committee and recent case law in his submission, all pointing to the fact that changes to the rates payable were essential.
He made two key arguments; the first being that COP work is specialised, combined with the fact that deputies carry, in general, higher overheads, which should mean that the current rates are paid with an uplift.
His second argument was presented as an alternative solution, in that if the Senior Courts Costs Office wanted to rely on the GHR as a starting point, then it must apply an empirical uplift to reflect the incidence of inflation between 2010 and 2019.
Due to inconsistencies in the evidence produced relating to overheads, Master Whalan was not convinced by the first argument. He said that the findings “do not, in my view, demonstrate that the burden is one that is exclusive to COP work or that it is atypically high in comparison with that experienced by practitioners in comparable areas of practice.”
He confirmed that the approach set out in Re: Smith and others (2007]) and Yazid Yahiaoui and others (2014) was still correct and applicable.
Maser Whalan then moved on to Wilcock’s secondary argument. He emphasised that he had no power to review the GHR, but recognised that they couldn’t provide “reasonable remuneration unless these rates are subject to some form of periodic, upwards review”.
Importantly, Master Whalan stated in his judgment: “I do not merely express some empathy for deputies engaged in COP work, I recognise also the force in the submission that the failure to review the GHR since 2010 threatens the viability of work that is fundamental to the operation of the COP and the court system generally.”
On the topic of inflation, Master Whalan questioned whether CPI was more appropriate than RPI. He said: “I am satisfied that in 2020 the GHR cannot be applied reasonably or equitably without some form of monetary uplift that recognises the erosive effect of inflation.”
He further specified that “if the hourly rates claimed fall within approximately 120% of the 2010 GHR, then they should be regarded as being prima facie reasonable”, and provided a suitable table of the GHR with a 20% uplift to assist costs officers undertaking future COP assessments.
Master Whalan concluded by saying that the provided rates are applicable to all outstanding assessments, regardless of the year the work was undertaken. He also advised that the recommendations of the GHR Working Group must be adopted in preference to his findings.
