Deputies & Litigation Costs Recovery

Professional deputies usually instruct litigation solicitors to represent a protected party in a civil claim and whilst the litigators will complete almost all aspects of the work involved, the role of the deputy is still important.

The role of deputies in civil litigation claims

Deputies provide the majority, if not the entirety, of instructions to the solicitors and whilst some of the time involved will be rolled into general management time, this is not always the case when the litigation is complex and a higher level of contribution is necessary. Indeed, in many damages claims, the input of the deputy is essential as the award of damages is closely linked to the protected party’s future needs, and the management costs associated with the deputy’s work. This means the deputy needs to be actively involved throughout many litigious matters.

The time deputies spend dealing with litigators can become substantial very quickly. Conferences with counsel, for example, can take half a day to a full day as can mediation or a round table meeting. Deputies often find themselves heavily involved in the preparation of witness evidence, dispositions, disclosure and expert instruction (especially where a site visit is required).

Also, dealing with costs is a big part of civil litigation and whether it is a case of preparing schedules for hearings and mediations, or going through a formal assessment process, deputies often have to invest considerable hours in breaking down their own time to form part of the costs claim.

Recovering litigation costs

It is arguable that the necessity of incurring this time is not the other party’s “fault” but that is not the approach taken by the civil Courts, particularly because deputies cannot usually recover their own time for dealing with civil litigation from the Court of Protection. It has been established that the Senior Court Costs Office (SCCO) cannot normally award deputies’ costs in dealing with litigation solicitors as “general management time” in the Court of Protection. The reason for this is that those costs are deemed to be properly recoverable within the litigation itself.

Litigators therefore need to engage with deputies from the outset of a claim where costs are concerned, including at the budgeting stage. With costs capping still being piloted, albeit without a high degree of enthusiasm to date, it is likely that a litigator acting on behalf of a deputy will need to make the appropriate application to avoid an additional squeeze on costs recovery. Various decisions from Master Haworth indicate that the time deputies spend providing costs information to litigators (including schedules and calculations) are not recoverable from the SCCO, if those costs relate to the civil claim.

Regardless of the fact that the time spent by a deputy instructing and liaising with litigators may be recoverable in those civil proceedings, deputies should always bear in mind that costs must be proportionate in accordance with the various principles of the Civil Procedure Rules 1998. Settlement inevitably involves a compromise on costs, and even if successful in seeking a costs award, an assessment on the standard basis inevitably leads to a reduction of between 20% and 40% as a rule of thumb, and rates can be altered if the Judge considers that work could have been done at a lower hourly rate. Where possible, deputies should involve junior fee earners at lower hourly rates and take a view on the degree of involvement that is reasonably necessary to help the protected party’s claim progress.