England and Wales Court of Protection Decisions

 

 

                                                                                   

Neutral Citation Number: [2020] EWCOP 41   

                                                                                               

Case No: Various    

 

COURT OF PROTECTION

 

MENTAL CAPACITY ACT 2005

First Avenue House

42-49 High Holborn,

London, WC1V 6NP

 

Date: 4^th September 2020

 

Before :

 

Her Honour Judge Hilder

 

 

 

THE PUBLIC GUARDIAN

Applicant

 

and

 

 

ANDREW RIDDLE

Respondent

 

 

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Hearing: 11^th August 2020

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Ms. Sutton (instructed by the Public Guardian) for the Public Guardian

Ms. van Overdijk (instructed by Blake Morgan LLP) for the Respondent

 

The hearing was conducted in public subject to transparency orders made on various dates. The judgment was formally handed down to the parties by e-mail on 4^th September 2020. It consists of 10 pages, and has been signed and dated by the judge.

The numbers in square brackets and bold typeface refer to pages of the hearing bundle.

A.      These proceedings

1.        The history of these proceedings is set out in a judgment now reported at [2020] EWCOP 41_(No._1).

2.        The hearing which had been listed on 3^rd July 2020 was vacated, with the consent of both parties, because of a bereavement. The matter was relisted today, being the next available date. The hearing was conducted in public by attendance at First Avenue House, not remotely.

3.        In advance of this hearing, Mr. Riddle filed statements dated 12^th June 2020 and 25^th June 2020, and Counsel for each party filed a position statement.

4.        Mr. Riddle confirmed that he does wish to retain his deputyship appointments and does not seek anonymity in the published judgment. Accordingly, the first judgment was formally handed down to the parties at the outset of the hearing. I then heard oral submissions from both Counsel.

5.        The Public Guardian confirmed that the estate of each of the protected persons with whom these proceedings are concerned was properly restored by 26^th June in accordance with the first judgment. (In so far as the Public Guardian sought particular confirmation of the source of funds for such restoration, Mr. Riddle has provided a statement from his business account and the Public Guardian does not challenge that. In so far as there is a minor discrepancy across 11 cases about the precise sum required to make full restoration - to the effect that Mr. Riddle may now have repaid too much - the parties agree that such can be resolved between them following the conclusion of these proceedings.) The Public Guardian no longer opposes the appointment of Andrew Riddle in the Schedule 1 cases.

6.        Mr. Riddle confirmed that he does still wish to be appointed in the Schedule 1 cases, in the Schedule 2 cases where his current appointment is only interim, and also in 13 other matters in which new applications have been made whilst these proceedings have been underway. He explained that he has employed an assistant and therefore does not have the ‘resource issues’ which were previously relied upon. He has confirmed that he understands the Public Guardian’s position that ‘resource issues’ will not be accepted as a legitimate reason for any non-compliance issues in the future.

7.        Accordingly, I made orders refusing Mr. Riddle’s applications for authorisation to charge fees at the solicitors’ rate, refusing his applications for relief from liability for past charges, and refusing the Public Guardian’s applications for revocation of his appointment.

8.        Going forwards, the Public Guardian has set out in writing the particular supervision arrangements for Mr. Riddle’s deputyship appointments, to be attached as an appendix to today’s order. The terms of that appendix are as follows:

“1. Andrew Riddle must provide the Public Guardian with the full invoices for his costs.

2. Andrew Riddle understands that the position of the Public Guardian is that it is his responsibility to ensure that he is properly resourced to act as deputy for his clients and that staff shortages (etc) will not be an acceptable reason to submit to the Public Guardian for failing to comply with his statutory obligations.

3. The Public Guardian will ensure that Andrew Riddle’s cases are managed by one Executive Case Manager supported by 2 General Case Managers, so that there is a small team who will become ‘expert’ in his cases.

4. Andrew Riddle’s supervision team will have regular calls with him, and a formal meeting (by telephone) will be scheduled for 6 months after the date of this order. If required an assurance visit will also be arranged whereby a Court of Protection visitor will visit selected clients, followed by a visit to Andrew Riddle.

5. Andrew Riddle must provide an annual report for each case after 6 months of the date of this order.

6. The Public Guardian will review the situation at the end of the first year. If, in the meantime, the Public Guardian has any concerns that Andrew Riddle does not immediately resolve, an application for discharge will be made.

7. As an internal issue, Andrew Riddle’s supervising team will have a swift escalation route to proceed with a discharge application, if appropriate, to ensure that there is no delay in restoring the matter back to court.”

9.        Any further application to discharge any appointment of Andrew Riddle as deputy for reasons of non-compliance with deputyship duties will be reserved to me. Any new applications for his appointment, other than the 13 which have already been filed during the course of these proceedings (on which, for convenience, I will make orders), will be dealt with by the judges and Authorised Officers of the Court of Protection as usual. 

10.    The issues remaining for consideration at this hearing were:

a.       Ms. van Overdijk’s request for clarification of the first judgment in two respects; and

b.      costs.

B.       Clarification of the first judgment

11.    Hybrid/tailored rate of fees: As set out in paragraphs 86 and 87 of the first judgment, Mr. Riddle’s primary position was that he should be authorised to charge fees at the solicitor’s rate but he also had a secondary position, namely that he should be authorised to charge fees at a tailored rate, somewhere between public authority and solicitor rates.

12.     The decision in respect of Mr. Riddle’s authority to charge fees was summarised at paragraph 108 of the first judgment in the following terms:

“My conclusions in respect of each individual case in which Mr. Riddle seeks authority to charge fees at the solicitors’ rate are therefore in line with the earlier, general observations as to remuneration: I am not satisfied that it is appropriate to authorise Mr. Riddle to charge fees at the solicitors’ rate, or indeed at any rate other than the public authority rate.”

13.    For absolute clarity, at the request of Ms. van Overdijk, I now confirm that the last sentence of that extract was indeed intended to convey that Mr. Riddle’s application in the alternative (ie, that he be authorised to charge fees in each of those cases in Schedules 1, 2 and 3 at a tailored/hybrid rate) is refused and for broadly the same reasons as was his application for authority to charge at the solicitors’ rate.

14.    In particular:

a.       Generally, I am not satisfied that Mr. Riddle’s account of his qualifications and experience justify any conclusion that he should be remunerated at a higher rate than public authority deputies. Public authorities commonly acquire and demonstrate a broadly comparable expertise. I am not satisfied that Mr. Riddle’s business structure leads to such conclusion either. There are other organisations in a comparable position authorised only to charge fees at the public authority rate. The Court’s determination of fees authorisation must be determined in the best interests of the protected person, not the business interests of the potential deputy. Mr. Riddle has not offered any account of services which he would offer over and above what a public authority might be expected to provide. I am satisfied that the standards of Mr. Riddle’s undisputed conduct as considered in these proceedings do not support authorisation of any higher rate than the public authority rate.  

b.      Specifically,

                                                              i.      Schedule 1 cases FA 13350587, RB 12900752, DR 1337225T, OW 13399393 and MA 13359773: there is a public authority willing to act, and no complexity in the estates such as would justify the protected person incurring costs at a higher rate than the public authority would charge (as set out in paragraph 107(a)(i) of the first judgment.) There has been no evidence filed on which I could reach a conclusion that it was in the best interests of each or any of these persons to pay fees any higher than public authority rates. 

                                                            ii.      Schedule 1 cases MF 13351659, MW 13326558, ML 13349488, JM 1337112T, JA 13351106 and AA 13271495: no public authority has confirmed its willingness to act in these matters so the alternative deputy proposed by the Public Guardian would be a solicitor from the Public Guardian’s panel. The absence of a public authority willing to act is not itself sufficient to justify Mr. Riddle being authorised to charge fees at a rate higher than the public authority rate. If that were to be the case, the fees charged for his deputyship would effectively be more a reflection of a ‘postcode lottery’ than the service provided. 

In respect of MF 13351659, MW 13326558, ML 13349488 and JM 1337112T, if the alternative options are paying a solicitor at the solicitors’ rate, or paying Mr. Riddle at a tailored/hybrid solicitor’s rate someway higher than the public authority rate but lower than the solicitors’ rate, then the additional safeguard of regulation by a professional body and the ‘kitemark’ of membership of the Public Guardian’s panel would be factors which each protected person would be likely to consider if they were able to do so and, in my judgment, such factors would outweigh any relative saving in fees.

In the matters of JK 13351106 and AA 13271495, the estates are so modest that the imperative to minimise costs of management is strong. Although neither of the relevant public authorities has confirmed their willingness to act in these two matters, they have not positively declined to act - they have simply not responded to the Public Guardian’s request. If an alternative deputy needs to be identified for these persons, the next step would be to require the Public Guardian to renew his request to the relevant public authority. I am not satisfied that it is appropriate, necessary or in the best interests of JK or AA that a deputy be appointed with authority to charge higher than the public authority rate. (In reality, given Mr. Riddle’s position today, it is not necessary to make further enquiry of the relevant public authority.)

                                                          iii.      Schedule 2: GEH has now died but there is no basis on which I could conclude that, during the five months of his deputyship, Mr. Riddle was required to resolve any complex issues such as to justify any rate of fees higher than the public authority rate.

Although Mr. Riddle says that he had to clear outstanding care fees and rationalise 15 accounts in the estate of JD 13115978, neither of those requirements can really, in my judgment, be described as a “complexity.” The relevant public authority is willing to act as replacement deputy. I am satisfied that the management burden to date does not justify higher than public authority rate fees, and management going forwards can be secured at the public authority rate. It would not be in JD’s best interests to authorise any higher rate of charging.

In the matter of MJM 13044984, Mr. Riddle describes a need to liaise with MJM’s spouse, in particular to determine apportionment of liquid assets held by MJM. I am not satisfied that this amounts to complexity sufficient to justify Mr. Riddle being authorised to charge fees higher that the public authority rate.  If the alternative options are paying a panel deputy at the solicitors’ rate, or paying Mr. Riddle at a tailored/hybrid solicitor’s rate someway higher than the public authority rate but lower than the solicitors’ rate, then the additional safeguard of regulation by a professional body and the ‘kitemark’ of membership of the Public Guardian’s panel would be factors which MJM would be likely to consider if she were able to do so. Having regard to the size of the estate, in my judgment, such factors would outweigh any relative saving in fees.

In the matter of BD 13168184, Mr. Riddle says he was required to do a considerable amount of work prior to the sale of the property. The estate now is very modest. In ID 13075764, there is a small balance of funds held from a damages award but managing it is said to be complicated because ID has unsettled living arrangements. I am not satisfied that, in either of these cases, the factors identified by Mr. Riddle amount to complexity sufficient to justify him being authorised to charge fees higher than the public authority rate. The modesty of the estates is a keen imperative to minimise costs. If the relevant Local Authority is indeed unwilling to act, the next step would be to invite the Public Guardian to approach a third sector deputyship provider with a request to act, with authorisation to charge fees at the public authority rate. (In reality, given Mr. Riddle’s position today, such enquiry is not necessary.)       

                                                          iv.      Schedule 3: in the matter of KT 13160251 the estate is very modest and the relevant Local Authority indicated its willingness to act as replacement deputy. I am satisfied that there is no basis for Mr. Riddle to be authorised to charge fees any higher than the public authority rate. (By COP9 application dated 29^th June 2020, the Court has now been informed that KT died on 26^th June 2020.)   

15.    Liability for past charging prior to the OPG letter dated 13^th December 2016:  My decision in respect of liability for past charging was set out in paragraphs 109 - 113 of the first judgment. For clarity, I now confirm that the decision to “hold [Mr. Riddle] to the terms of the authority he was granted” applies to charging both before and after the OPG sent him the letter dated 13^th December 2016.

16.    The reasons given at paragraph 111(a), (b) and (c) of the first judgment apply just as much to charging practices before December 2016 as afterwards. The overall impression of Mr. Riddle’s approach set out in paragraph 112 of the first judgment specifically refers to his approach “from the outset.” I do not accept that Mr. Riddle was ever - even before December 2016 - in such doubt as to charging authorisations as to justify relief from liability for excess charging. The OPG’s letter of December 2016 did not make any difference to his approach because Mr. Riddle had already convinced himself that he could charge fees at the rate which he considered appropriate, irrespective of actual authorisations.   

C.       Costs

17.    The Public Guardian’s position: The primary position of the Public Guardian is that there should be no order as to costs in respect of these proceedings. For the avoidance of doubt, it was confirmed that he means by this that the Public Guardian would pay his own costs, Mr. Riddle would pay his own costs, and no protected person would pay any costs other than the fixed costs for making the application in the Schedule 1 cases.

18.    In response to Mr. Riddle’s position, the Public Guardian adopts a secondary position that his costs of instructing counsel should be paid by Mr. Riddle.

19.    Mr. Riddle’s position: Mr. Riddle agrees (position statement paragraph 25) that there should be no order (ie he should bear his own costs) in respect of the following:

a.       all Schedule 1 applications “beyond the costs deemed necessary and proportionate in applying to be appointed as deputy”;

b.      all Schedule 2 applications;

c.       any time spent on Schedule 3 and Schedule 4 matters in relation to establishing the overpayment of legal fees (“as a consequence of the court rejecting his application for retrospective authorisation”);

d.      any time spent in relation to the issue of Mr. Riddle paying his legal fees from the estates of protected parties and restoring the estates in this regard.

20.    However, Mr. Riddle contends that the Public Guardian should pay his costs associated with responding to the revocation applications save for those costs addressed in (c) and (d) above.

21.     The Legal Framework: Each party has set out in their position statement extensive submissions as to the legal framework as to costs. There is broad agreement between them. I summarise the following points of reference:

a.       Section 55 of the Mental Capacity Act 2005 (“the Act”) provides that costs are in the discretion of the court.

b.      Section 51 of the Act allows for rules to be made in respect of the practice and procedure of the court. The applicable rules are the Court of Protection Rules 2017 (“the Rules”).

c.       The general rule in respect of property and affairs applications is set out in Rule 19.2:

“Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings, or that part of the proceedings that concerns P’s property and affairs, shall be paid by P or charged to P’s estate.”

d.      The court may depart from the general rule as provided in Rule 19.5:

“(1) The court may depart from rules 19.2 to 19.4 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances including –

(a)   the conduct of the parties;

(b)   whether a party has succeeded on part of that party’s case, even if not wholly successful; and

(c)    the role of any public body in the proceedings.

(2) The conduct of the parties includes -

               (a) conduct before, as well as during, the proceedings;

(b) whether it was reasonable for a party to raise, pursue or contest a particular matter;

(c) the manner in which a party has made or responded to an application or a particular issue;

(d) whether a party who has succeeded in that party’s application or response to an application, in whole or in part, exaggerated any matter contained in the application or response; and

(e) any failure by a party to comply with a rule, practice direction or court order.

(3) Without prejudice to rules 19.2 to 19.4 and the forgoing provisions of this rule, the court may permit a party to recover their fixed costs in accordance with the relevant practice direction.”

e.       The Rules apply equally to all court users, including the Public Guardian - Public Guardian v. DJN [2019] EWCOP 62. The supervisory function on the Public Guardian is established by section 58(1)(c) of the Act. His obligation of “dealing with representations (including complaints) about the way in which a …deputy appointed by the court is exercising his powers” is established by section 58(1)(h) of the Act.

f.       Each application should be considered on its own merits - London Borough of Hillingdon v. Neary & Ors [2011] EWCOP 3522, VA & Ors v. Hertfordshire Partnership NHS Foundation Trust [2011] EWCOP 3524.

g.      Where the court is satisfied that it is appropriate to depart from the general rule, a ‘broad brush’ approach has been approved - Manchester City Council v. G & Ors [2011] EWCA Civ 939. The court is not constrained by how the parties frame the argument and may look at the matter as a whole - London Borough of Hillingdon v. Neary & Ors [2011] EWCOP 3522. The determination of costs is not a precise science but “an intuitive art reflecting the Judge’s feel for the litigation as a whole” - per Hayden J in MR v. SR & Bury CCG [2016] EWCOP 54.

22.    It is not in dispute that the circumstances of these proceedings do indeed justify a departure from the general rule as to costs in property and affairs matters. The issues which Mr. Riddle put before the court were entirely concerned with his remuneration. The issues which the Public Guardian put before the court were entirely concerned with Mr. Riddle’s conduct as deputy. In those circumstances, in my judgment, it would not be appropriate that any individual protected person should bear the costs.  (I note that this approach is consistent with the approach taken by the parties and the then Vice-President in the matter of Re AR [2018] EWCOP 8, which was factually different of course but also focussed on a deputy’s remuneration across many cases.)  

23.    I agree with the Public Guardian that each party should bear their own costs, and I reject Mr. Riddle’s claim for the Public Guardian to pay any part of his costs, for the following reasons:

a.       Mr. Riddle was wholly unsuccessful in his applications for authority to charge fees at the solicitors’ rate, generally and in each individual case.

b.      Mr. Riddle was wholly unsuccessful in his applications to be relieved from liability for past charging, generally and in each individual case.

c.       The Public Guardian’s revocation applications were dismissed, but only upon confirmation that Mr. Riddle had restored every estate to its proper level according to the determinations in respect of Mr. Riddle’s applications.

d.      It is not practicable or reflective of the proceedings as a whole to separate Mr. Riddle’s costs incurred “responding to the revocation applications” as he suggests. In reality the revocation applications were intrinsically linked with the issues in respect of charging and breaches of duty, on which Mr. Riddle accepts that he should bear his own costs. I am satisfied that it was, as Miss Sutton contends, “the cumulative effect of the breaches and Mr. Riddle’s responses to the same which led to the applications for revocation being pursued.” 

e.       It is my sense of these proceedings that the revocation applications were an appropriate response to significant concerns raised with and by the Public Guardian, which Mr. Riddle had not resolved as promptly as may be expected and had in fact been aggravated by his conduct in respect of his own legal costs.

f.       I am not persuaded by Ms. van Overdijk’s description of the Public Guardian as “unnecessarily hostile and disproportionate from the outset.”   I am not satisfied that the conduct of the Office of the Public Guardian either before or during the proceedings fell so far short of what may be expected as to justify a requirement that it pays even part of Mr. Riddle’s costs. In so far as communications between the Office of the Public Guardian and Mr. Riddle may not always have been as constructive as they should be, I am in no doubt that Mr. Riddle’s attitude, responses and (in)actions were a significant causative factor to that. Effective co-operation requires engagement on both sides.  

g.      The Public Guardian should not be constrained from bringing complex and multi-faceted cases to the attention of the court by a fear of costs risks. These proceedings were procedurally complicated to manage and administer as the number of cases under consideration grew in a piecemeal fashion, as set out in paragraphs 17 to 27 of the first judgment. That context is an important consideration when determining any allegation by Mr. Riddle that the conduct of the Office of the Public Guardian during these proceedings was not appropriate. Any order for costs against the Public Guardian must be clearly based on demonstrable significant failings. I am not satisfied that there were such failings in this matter. 

h.      In the whole context of these proceedings, I am satisfied that the most appropriate order is that each party bears their own costs.

24.    For the avoidance of doubt, it follows from my acceptance of the Public Guardian’s primary position that there is no need for me to consider his secondary position. The order will set out that each party bears their own costs and any application for costs against the other party is refused.

D.      Conclusions

25.    These proceedings are now concluded. There should now be no distraction from the needs of the persons for whom he is appointed deputy being the focus of Mr. Riddle’s energies. He has been given an opportunity to demonstrate exactly the kind of specialist service for which he considers himself particularly qualified and experienced.

26.    The Office of the Public Guardian functions to protect the needs of vulnerable people, and Mr. Riddle should welcome its oversight of his appointments for that reason. I am sure that both parties fully appreciate the benefits of constructive engagement going forward, so that there is no need for any further proceedings.   

 

HHJ Hilder

18^th August 2020