Hourly Rates In Court Of Protection (And Other) Cases

Guideline Hourly Rates

In our article How Relevant Is The SCCO Guide To Hourly Rates we looked at three cases in which two High Court Judges and the Senior Costs Judge independently commented on the passage of time since the guideline rates were last updated in 2010 and, consequentially, their relevance on detailed and summary assessments being conducted in 2020.

In Fuseon Ltd, R (On the Application Of) v Shinners [2020] EWHC B18 (Costs), the Senior Costs Judge, Master Gordon-Saker, said:

“The guideline rates are of course just that. They are fairly blunt instruments designed to assist judges in the summary assessment of costs. The passage of time since 2010 means that they tend now to be used as a starting position rather than as carved in stone.”

As many will know, earlier this year the The Civil Justice Council (CJC) established a Guideline Hourly Rates Working Group chaired by Mr Justice Stewart QC. The Group has been tasked with reviewing the guideline hourly rates and is in the process of gathering evidence which includes details of hourly rates allowed by costs judges and costs officers on detailed assessments.

Pending that review, Master Whalan in the SCCO has determined a preliminary issue concerning the method of assessment of hourly rates claimed by Deputies in The Matters of 1. PLK 2. Aayan Ahmed Thakur 3. Nathanial Chapman 4. Paul Nigel Tate.

The Master rejected the applicant’s primary submission that “it is clear that no other area or practice requires such a level of unrecoverable time” …

“So far as the datum is consistent and stable – and, as noted, the most reliable figures are probably those produced by Clarion – it suggests a comparatively modest incidence of time and expenditure. However reliable the figures produced may be, they 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. Fee earners in personal injury, medical and professional negligence, for example, incur invariably time and expense that is irrecoverable, in marketing, accessing cases that are not proceeded with or, indeed, pursued and lost. These are burdens which do not apply to Deputy’s sources of work (on a case by case basis) which is often consistent and predictable over many years.”

However, he did echo the concerns of many in the judiciary about the failure to update the guideline rates since 2010 …

“It seems clear to me that the failure to review the GHR since 2010 constitutes an omission which is not simply regrettable but seriously problematic where the GHR for the “going rates” applied on assessment. 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.”

He continued …

“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 and, no doubt, other commercial pressures since the last formal review in 2010.”

Speaking directly to work in the COP, he concluded …

“…my finding and, in turn, my direction to Costs Officers conducting COP assessments is that they should exercise some broad, pragmatic flexibility when applying the 2010 GHR to the hourly rates claimed. If the hourly rates fall within approximately 120% of the 2010 GHR, then they should be regarded as being prima facie reasonable.”

In a “practical attempt to assist Costs Officers and avoid unnecessary delay” he produced a table demonstrating the effect of a 20% uplift on the 2010 guideline hourly rates …

Bands A B C D
London 1 £490 £355 £271 £165
London 2 £380 £290 £235 £151
London 3 £275-320 £206-275 £198 £145
National 1 £260 £230 £193 £142
National 2 £241 £212 £175 £133

This decision will be immediately welcomed by those conducting COP work.

Given the Master’s findings about practitioners in comparable areas of practice, including personal injury, medical and professional negligence, it is quite possible that it will have a broader impact and will at the very least lend support to receiving parties’ arguments on hourly rates pending the outcome CJC’s GHR Working Group review.

Link to Judgment