Updated COP Guideline Hourly Rates

Something of a landmark decision has recently been handed down in the Senior Courts Costs Office which will have significant effects (at least in the short to medium term) on the profitability of those undertaking Deputyship work in Court of Protection matters.

Four firms undertaking Deputyship work brought an appeal against the assessment of their costs arguing that the 2010 guideline rates, which are generally applied across the board in all Deputyship matters by Costs Officers without exception, were no longer appropriate on the basis of (a) the specialism of Deputyship work, (b) the high overheads associated with the same and (c) the effect of inflation since 2010 (since which the rates have been stagnant).

Those with long memories will remember the uphill battle that ensued in order that Deputies (or Receivers as were) might legitimately recover even guideline rates following a decision of Master O’Hare (then the Senior Costs Judge) in a case of Re Ashton in 2006 where he had concluded that rates at or around 90% of the guidelines were suitable for such work on the basis of a rather unflattering comparison with litigation (Master O’Hare considering that Court of Protection work displayed ‘lower levels of urgency and adrenaline’ and noting that Receivers had somewhat ‘greater autonomy’ than those practising in litigation – somewhat disregarding the fact that this gave rise to a concomitant increase in responsibility).

It took a joint appeal[1] by Irwin Mitchell and Taylor Vinter, each represented by heavyweight Costs Counsel (both of whom having subsequently taken silk) to convince a Costs Judge (in this case Master Haworth) that Court of Protection practitioners might legitimately command the same guideline rates as those practising in any other field.

However, as practitioners in other areas will be equally (and equally painfully) aware, those guideline rates have not now been increased for over a decade and are looking rather outdated.  In fact, the Civil Justice Council has recently established a working group, chaired by Stewart J, to review the guideline rates with a view to a draft report being made available by the end of this year (which does seem something of a wildly optimistic timeframe).  Pessimistic practitioners will, however, no doubt recall that a similar review in 2014 overseen by Lord Dyson saw no increase in the rates given an insufficiency in the evidence (which prompted no further, more comprehensive review at the time).

Presently, there is increasing anecdotal evidence of Costs Judges at first instance concluding that the guideline rates are now so woefully outdated that they will allow a suitable uplift on the same simply to allow for the increase in the value of money (before even considering whether an uplifted rate is applicable on the basis of the factors at CPR 44.4(3)).

Master Whalan, hearing the present appeal, refused to accede to the argument being advanced that Deputyship work entailed specialism which ought to be reflected in the allowable rates nor to argument that the work involved an unusual level of overheads finding that ‘the evidence, both in respect of time and expenditure, is inconsistent and, in my view, incomplete’ being unpersuaded by the (perhaps overly bold) assertion that ‘it is clear that no other area of practice requires such a level of unrecoverable time’.

Master Whalan did, however, accept that the failure to increase the guideline rates even to reflect inflation ‘threatens the viability of work that is fundamental to the operation of the COP and the court system generally’ and concluded that a 20% increase on the 2010 guideline rates (reflecting the 21% increase in the Consumer Prices Index) ought to be henceforth considered as prima facie reasonable.

In fact, Master Whalan went so far as to prepare a table of appropriately uplifted guideline rates which all practitioners in this area would be wise to utilise.  The table is reproduced below

Helpfully, Master Whalan specifically stated that these increased rates are to have retrospective effect for any outstanding work and do not just have effect from now onwards.  Therefore any outstanding Bills for Deputyship costs can (and indeed should) be claimed at the uplifted rates.

That said, it is not all one-way traffic as Master Whalan has stated, when indicating that rates of up to 20% above the guidelines should be considered as prima facie reasonable, that it follows that ‘rates claimed above this level will be correspondingly unreasonable’.  This strikes as a surprisingly blanket assertion when all assessments of costs ought to be approached on their own merits and given that it is at least conceivable that, on an analysis of the factors at CPR 44.4(3), a case might be made out for a further uplift in the rates (or at least that it is unlikely that one can preordain that such a case will never be made out).  It might, however, be the case that, as only snippets of Master Whalan’s judgment have been made available at present, he is being quoted slightly out of context.

In any event, all the above should probably be considered something of a short-term fix as Master Whalan has explicitly stated the caveat that his judgment is subject to the findings of Stewart J’s working group and that ‘ultimately, the recommendations of the working group must be adopted in preference to my findings’.  Practitioners might therefore look to make hay while the sun shines lest Stewart J come to the same conclusion as Lord Dyson some six years ago and simply reconfirm the 2010 rates for another decade.