‘Difficult parties’ and the Court of Protection costs assessment process – getting the balance right

This article will be of interest to Professional Deputies and those assisting Professional Deputies.  We are increasingly seeing more and more complex cases, which sometimes involve parties who, whilst looking out for the best interests of P, might need additional support and advice to ensure they are fully understanding of the Deputy’s role, along with that of the Court of Protection and the Office of the Public Guardian.

A difficult party for a Deputy may be a member of the protected party’s immediate family, or a lay Deputy, who at every given opportunity may query and question the Deputy’s every move, often disagreeing with any decision the Deputy makes. Such a party would need to be illustrated to the SCCO, in a way which evidences the difficulties the party has had with the Deputy (and often vice versa) and why an increased level of contact was required during the period.

It is imperative, under the Mental Capacity Act 2005, for the Deputy to obtain and consider the wishes and feelings, not only of P, but of those close to P.  It is not simply a case the Deputy can choose to ignore members of P’s family.

The issue for your Costs Draftsman is often the way this is portrayed, particularly as some parties are directed to be served with the assessed bill following assessment, which may cause further difficulties between the party and the Deputy. It is essential if your Costs Draftsman is including any information about complications in the narrative, they stick to the facts and leave out any emotive language, which may serve to further damage an already precarious relationship between the Deputy and the party in question.

The Costs Draftsman may feel it necessary to keep the narrative ‘bland’ whilst having the option to submit a supplementary letter to the Costs Officer or Costs Judge if there are sensitive details around the case, which might cause conflict with the difficult party. Any significant difficulties could be explained in this letter, enabling the Costs Draftsman to avoid putting anything controversial in the Bill.  This ensures full details of the complexities of the case are provided to the Costs Officer or Judge whilst maintaining the working relationship between the Deputy and the party.

However, the Costs Officer or Costs Judge may thereafter direct the letter to be served on all interested parties, as they have a right to reply. This is also in the interests of transparency in the assessment process.

Advising the Costs Officer of the position regarding the difficulties of a case is not only for the best interests of the relationship between the parties, but to also maximise your recovery. Detailing why there are significant amounts of correspondence, phone calls or meetings between the Deputy and the difficult party may allow the Costs Officer to deem the work undertaken as absolutely necessary, potentially increasing the recovery compared to another bill where the difficulties have not been properly detailed and the Costs Officer has simply reduced the time spent on the party on a broad-brush basis.

It is all about getting the balance right between letting the SCCO know of the nature of the case and difficulties, whilst preserving the Deputy’s relationship with that difficult party. It all comes down to what is in P’s best interests. I do hope the information provided here will be of assistance to practitioners.  As with many costs aspects, these issues are not always clear cut and as we all know, the Costs Officers often have different opinions on reductions or excluding high levels of work on such issues. However, should you have any queries arising as a result of this article, please do not hesitate to contact us.