On 27 February 2020, the Court of Protection (COP) handed down judgment in the matter of Re ACC and others (ACC).
This concerned three different individuals whose deputies for property and financial affairs (PFA) were associated with the law firm Irwin Mitchell – being either the Irwin Mitchell Trust Corporation or a partner of the firm.
The issue brought before the COP was whether, and in what circumstances, a PFA deputy could recover legal fees from the protected party (P), more particularly whether they could recover legal fees incurred in the conduct of litigation.
The COP judged that the following principles applied:
- A PFA deputy’s 'general' authority to manage P's property and financial affairs includes the common tasks which are necessary to administer P's estate efficiently.
- These common tasks include ordinary non-contentious legal tasks, including obtaining legal advice, which are necessary to give effect to that authority, such as:
- obtaining legal advice in relation to P's tax return;
- seeking advice as to P's liability under a tenancy; or
- dealing with the employment contracts of directly employed carers.
- Specific authority is required to conduct litigation on P's behalf except:
- where the contemplated litigation is in the COP in relation to a PFA issue; or
- where the contemplated litigation is to seek directions from the COP in respect of a welfare issue.
- A PFA deputy's general authority also includes steps taken in contemplation of contentious litigation in respect of PFA matters, including obtaining legal advice, up to sending the letter of claim and receiving the letter of response (as this provides an overview of the claim, defence and corresponding merits which can later be provided to the COP), but no further. This includes obtaining counsel's advice if necessary. If a deputy wishes to proceed with litigation beyond this point, then they must obtain authority to litigate from the COP. If this cannot be obtained in advance due to the urgent nature of the action, then the deputy proceeds at risk to costs (i.e., not recovering them), but may make a retrospective application to recover these from P's funds. This will then be assessed on its merits.
- A PFA deputy's general authority does not encompass seeking advice or taking other steps in contemplation of litigation related to welfare issues. A deputy must instead apply to the COP for further directions or specific authority in relation to the matter in question.
- Where a deputy wishes to instruct his or her own firm to conduct legal tasks (in a contentious context), special measures must be taken to address the conflict of interest:
- the deputy may seek prior authority;
- the deputy must seek three quotations from appropriate providers (including one from their own firm) and decide which would be in P's best interests;
- where the deputy has decided that the instruction of his own firm is in P's bests interests and the anticipated costs exceed £2,000, plus VAT, the deputy must apply to the court for specific authority ; and
- the deputy must clearly set out any legal fees incurred in relation to the contentious matter in his or her annual account to the Public Guardian, and append the notes of the decision making process.
As with all COP decisions, ACC was made with the emphasis on the statutory requirement to act in, and support, P's best interests.
Logically this approach does justify the imposition of the various measures necessary in order to obtain legal advice from a deputy's own firm; it ought to be in P's best interests to 'shop around' to obtain the most cost efficient legal advice, rather than being confined to one firm simply because their deputy happens to be affiliated with that same firm.
However, the COP's good intentions may have misfired in practice. Almost eight months on from the decision, it is possible to consider how this has been applied in practice and whether it has indeed supported P's best interests.
Where are we now?
In the intervening six or so months, we have received a number of enquiries for quotations for legal advice, so firms do indeed appear to be obtaining the necessary three quotations.
There are however difficulties in this approach, which have been revealed in practice:
- It is difficult for a firm which has no familiarity with P or the case in question, simply to provide a quote for the entirety of the litigation. In any matter where contentious proceedings are envisaged, firms will need to spend time (and incur costs) assessing the merits of the matter to establish the correct approach. This includes consideration of what evidence will be required, the likely extent of disclosure, what expert evidence may be required and the length of the eventual proceedings.
Generally, any meaningful estimate of costs can only be provided once the parties have reached the stage of the costs and case management conference.
It is debatable whether even the firm with which the deputy is affiliated would be in a position to provide such an estimate at the time it is required. However, on any analysis, an estimate is much more easily produced by the firm that the deputy is affiliated with, as they will have access to the background in greater detail. Presumably they will have reviewed the letter of claim and response.
It is possible in these circumstances that firms may decline to provide quotations at all.
- There is nothing to prevent firms from obtaining these quotes prior to giving their own quotes, with the risk that the firm under-cuts any quotation obtained; and
- Obtaining costs and detailing the decision making process incurs more costs for P, in respect of the deputy's time.
The risk, therefore, is that of unintended consequences. The possible (or even likely) effect of 1) and 2) above is that the firm with which the deputy is affiliated will result in being the firm to provide the legal advice to the deputy. The outcome is therefore the same as prior to ACC, with the same firms providing the advice as previously, however, more costs have been incurred in obtaining these quotes and detailing the decision for the Public Guardian.
Alternatively, the costs incurred obtaining the quotes may be disallowed on assessment, resulting in few professional deputies being willing to carry out the work, which would leave many vulnerable protected parties without the representation they need.
Arguably the impact of ACC has therefore resulted in a worse position for P in practice, the opposite result of that intended by the COP. One also has to wonder whether the Court, in its decision, is trying to remedy a problem that does not really exist, and to the extent it does, protections are already in place, namely: the requirement to obtain permission to litigate (which has some analogies with the Beddoe relief to be found in the trusts and estates sphere) and the protections afforded by the assessment of the deputy’s litigation costs, which is a requirement under CPR 21 in any event.
While the aims of the decision in ACC are laudable, regrettably it appears these aims will be thwarted in practice under the regime as is stands. It is to be hoped that the requirements can be refined in future applications, and Pl’s best interests protected in the way that the COP rightly expects.