England and Wales High Court (Senior Courts Costs Office) Decisions

IN THE HIGH COURT OF JUSTICE
SUPREME COURT COSTS OFFICE

		Clifford's Inn, Fetter Lane London, EC4A 1DQ
		31 July 2006

Master O'Hare:

1. The papers before me do not give many details of the patient. I know that he was involved in a road accident in which he suffered severe brain and spinal cord injury. His claim for compensation is valued in several millions of pounds. In September 2002 the Court of Protection made an order appointing Mr Andrew Harding, a partner in Messrs Hugh James, as the Receiver for the patient upon the application of Hilda May Ashton who was thereby discharged from the receivership. In July 2004 an order was made allowing the purchase of a property to be specifically adapted for the patient, enabling him to be discharged from hospital and back into the community with support. A letter dated 13 September 2005 to the Public Guardianship Office describes the patient's monthly care costs as being, at that time, approximately £12,000 which included £3,000 per month in respect of work done by a Brain Injury Case Manager.
2. In this case I am asked to determine the appropriate hourly rate to allow for work done by a member of the Receiver's staff whose job description is "Specialist Support Services Manager". In the remainder of this judgment I shall refer to her as "the SSSM".
3. The costs in question relate to general management work in the year ending 15 September 2005, the relevant locality being Inner Cardiff. As a general rule such work would be undertaken mainly by the Receiver himself with the routine day to day work being delegated to a more junior fee earner, (in this firm described as the Receivership Assistant). The routine, day to day work includes drawing accounts and liaising with the Public Guardianship Office, the Court of Protection and the Costs Office. In this particular bill a large part of the costs relate to work done by the SSSM because of, it is said, the need to supervise the refurbishment and adaptation of the patient's new house during this period.
4. The bill of costs was filed in the SCCO in December 2005. The hourly rates claimed therein were as follows:

i) The Receiver £170;

ii) The SSSM £125;

iii) The Receivership Assistant £85;

iv) The Costs Draftsman £85.

5. In order to appreciate the arguments raised on the appeal, it is convenient to set out here the four grades of fee earner specified in the SCCO booklet "The Guide to the Summary Assessment of Costs" noting beside each grade the hourly rates specified for Inner Cardiff at the relevant time.

Grade A: Solicitors with over eight years post qualification experience including at least eight years litigation experience; £184

Grade B: Solicitors and Legal Executives with over four years post qualification experience including at least four years litigation experience; £163

Grade C: Other Solicitors and Fellows of the Institute of Legal Executives and fee earners with equivalent experience; £137

Grade D: Trainee Solicitors, paralegals and fee earners of equivalent experience; £100.

6. In January 2006 the bill was provisionally assessed by Costs Officer Myers who reduced the hourly rate for the SSSM from £125 to £100, but allowed the other hourly rates as claimed. A number of other reductions were made to individual items in the bill but no appeal has been brought against those reductions.
7. The solicitors requested Cost Officer Myers to review her decision without a hearing. This she did later in January and confirmed the provisional assessment she made. Costs Officer Myers adhered to the view that she should: -

"… exceptionally allow the Grade D rate of £100 for the SSSM noting that in another case, the Grade D rate was all that had been requested for this fee earner".

8. In the appeal to me the solicitors demonstrated that the fees claimed in the case mentioned by Cost Officer Myers were not claimed at the Grade D rate but what was then the equivalent of today's Grade C rate. They also demonstrated that the rate claimed for the SSSM in this bill (£125) had been allowed without demur in at least four other cases in respect of work done in the same year as this case.
9. The appeal before me was conducted by way of a telephone hearing. Set out below are the three topics I asked the Receiver to address at the hearing together with my summaries of the answers he gave either orally or by way of his skeleton argument.

Expertise

10. The SSSM has been employed by the solicitors in that capacity since 1999. At that time she had had over ten years experience in social work, initially for Cardiff County Council Social Services, then six years in Rockwood Hospital as a Social Work Assistant and thereafter as a GP attached Social Worker. She has a Diploma in Social Work and is registered with the General Social Care Council. She is also a member of the British Association of Brain Injury Case Managers, Brain Injury Social Work Group and the British Association of Social Workers. She is the Secretary of the Child Brain Injury Trust Wales and a trustee of the local Spinal Injuries Unit Charity.

The appropriate hourly rate

11. I was invited to have regard to the guideline rates for Inner Cardiff, where the SSSM is located, and to consider the Grade C rate rather than the Grade D rate. As Costs Officer Myers accepted, it is appropriate to allow an hourly rate for the SSSM in excess of the rate allowed for the Receivership Assistant, whose work she supervises. The academic achievement and many years of relevant practical experience ought to be treated as equating the SSSM with Grade C rather than Grade D. It was conceded that the appropriate rate for a Brain Injury Case Manager would be up to £70 per hour. However, I was invited to take into account the fact that the essential overheads of running a solicitor's practice will exceed the overheads of a Case Manager's practice. Also, although the guideline figure for Grade C fee earners in Inner Cardiff at the relevant time was £137, the sum claimed in this case is £125. A rate of £120 was allowed for the SSSM in respect of general management work carried out in the previous accounting year. By letter dated 1 March 2005 the Receivership Assistant wrote to the Public Guardianship Office to inform them that the firm had: -

"… recently carried out a review of our hourly rates and with effect from 1 May 2005 the hourly rates charged will be as follows...Specialist Support Services Manager £125. ... Please contact me if you have any objections to the proposed rates. However if we do not hear from you we will assume you are happy with these rates."

12. The Public Guardianship Office did not make any comment on the rates proposed in that letter.
13. At the hearing before me the Receiver also placed reliance on the rates allowed in other cases which I have previously mentioned.

The role performed by the SSSM in this case

14. Seniority is not the only relevant factor. To justify a claim for a senior fee earner's rate the work done must be shown to be work appropriate for a senior fee earner. I am told that the general duties of the SSSM include liaising with the patient, his family and the Case Manager and supervising the Receivership Assistant. The SSSM's duties do not involve work which might be undertaken by a
15. Case Manager or which falls within the remit of case management. A Case Manager is employed by the patient via the Receiver and the SSSM, due to her specialist knowledge and experience, frequently consults with and instructs the Case Manager and Care Team in the place of the Receiver. It was submitted that this occasioned a considerable saving to the patient given the different hourly rates claimed for the SSSM and the Receiver. In this case in this particular year greater involvement by senior fee earners was appropriate because of the patient's move from hospital to house.

MY DECISION

16. I consider that in the earlier proceedings in this case and in the arguments on appeal, there has been a too great a reliance upon the guideline figures set out in "The Guide to the Summary Assessment of Costs". The Guide was first published by the SCCO in 1999 and was intended to assist judges who were faced with the then unfamiliar task of conducting summary assessments. The different grades of fee earner described are provided by way of general guidance only as to the different levels of seniority and responsibility in a solicitor's office. In fact the levels, at least those above Grade D, are almost infinite in number. Similarly, the figures for each grade are broad approximations provided as no more than a starting point for the task of assessment. As might be expected in the guide for use in summary assessments, the figures deal with the generality of litigation cases, not cases such as this.
17. As the solicitors in this case recognise there are several reasons why hourly rates which are appropriate for Receivers and their staff in most Court of Protection matters will be lower than the rates for other work. General management work of a Receiver usually has lower levels of urgency and adrenalin when compared with other work. Although the decisions that have to be made can sometimes be of the greatest importance and can merit the most anxious consideration, a Solicitor Receiver and his staff have greater autonomy than their equivalents in other work. There is also the fact that, especially in a large estate such as this, the receivership will produce a steady stream of work. In this case the hourly rate claimed for the Receiver is 92% of the relevant Grade A rate, the hourly rate claimed for the SSSM is 91% of the relevant Grade C rate, and the hourly rate claimed for the Receivership Assistant is 85% of the relevant Grade D rate.
18. I accept that the SSSM in this case has an expertise justifying a higher rate than the Receivership Assistant and, in this busy year in the patient's life was performing a role which merited the use of a fee earner more senior than the Receivership Assistant. The responsibility she has and the role she performs make it inappropriate to describe her as being of the same rank as the Receivership Assistant. If compelled to classify the SSSM as being in Grade C or Grade D I would place her in Grade C. However, for the reasons already given I do not place as much emphasis on this classification of fee earners as the Receiver did in argument and as Cost Officer Myers appears to have done in her decision.
19. In reaching a figure appropriate for this fee earner I place no weight at all upon the letter written to the Public Guardianship Office describing the rates to be claimed, which letter produced no objection from the PGO. It is the job of the Costs Office to decide these questions, not the PGO. I note in passing that, had I relied upon the letter, I would not have set the proposed rate as from 16 September 2004 as claimed in the bill but only as from 1 May 2005 as stated in the letter.
20. I place little weight on the allowances of rates given in other cases or in an earlier year in this case. As to the other cases I do not have the details of them. In this case I am aware that a rate of £120 was allowed for an earlier year but the amount at stake in that bill was considerably smaller than the amounts at stake in this. Whilst I share the Receiver's desire to have consistency between cases and years, I do not think this should be allowed to override the importance of accuracy. Although the Costs Office attempts to get every decision right it also reserves the right to improve.
21. In my judgement the hourly rate of £125 as claimed by the Receiver, or £100 as allowed by Cost Officer Myers, both fall within the ambit within which reasonable persons might reasonably disagree. I therefore cannot say that either figure is wrong. However, appeals from costs officers involve a full rehearing in which the costs judge must make any order or give any direction he thinks appropriate. Thus, the decision to set a rate now falls to me.
22. I consider that a rate of £118 more accurately takes account of the relevant factors of this case. The factors which weighed most heavy with me in this decision are as follows:-

i) The age and the experience of the SSSM;

ii) The rate appropriate for Brain Injury Case Managers generally;

iii) The rate appropriate for the Receivership Assistant in this case and SSSM's seniority to the Receivership Assistant;

iv) The degree of responsibility shown by the SSSM in this period. To a great extent this is indicated in her favour by the comparatively low amounts of time incurred by the Receiver in this matter.

23. I therefore allow this appeal in part. Although the appeal has not succeeded in full I take the view that the Receiver is entitled to his reasonable costs of the appeal in full. The statement of costs totals £888.89 all of which I allow.
24. My provisional view is that it would not be appropriate to give permission to appeal this decision. However, I will hear arguments as to that if the Receiver so wishes. Although I do not wish to encourage any such application, if the Receiver wishes to apply I invite him to do so by telephone.