The Court of Protection Rules 2007

PART 19 COSTS

Interpretation

155.—(1) In this Part—

(a) ‘additional liability’ means the percentage increase, the insurance premium, or the additional amount in respect of provision made by a membership organisation, as the case may be;

(b) ‘authorised court officer’ means any officer of the Supreme Court Costs Office, whom the Lord Chancellor has authorised to assess costs;

(c) ‘costs’ include fees, charges, disbursements, expenses, reimbursement permitted to a litigant in person, any additional liability incurred under a funding arrangement and any fee or reward charged by a lay representative for acting on behalf of a party in proceedings;

(d) ‘costs judge’ means a taxing Master of the Supreme Court;

(e) ‘costs officer’ means a costs judge or an authorised court officer;

(f) ‘detailed assessment’ means the procedure by which the amount of costs or remuneration is decided by a costs officer in accordance with Part 47 of the Civil Procedure Rules 1998 (which are applied to proceedings under these Rules, with modifications, by rule 160);

(g) ‘fixed costs’ are to be construed in accordance with the relevant practice direction;

(h) ‘fund’ includes any estate or property held for the benefit of any person or class of persons and any fund to which a trustee or personal representative is entitled in his capacity as such;

(i) ‘funding arrangement’ means an arrangement where a person has–

(i) entered into a conditional fee agreement or a collective conditional fee agreement which provides for a success fee within the meaning of section 58(2) of the Courts and Legal Services Act 1990(1);

(ii) taken out an insurance policy to which section 29 of the Access to Justice Act 1999 (recovery of insurance premiums by way of costs) applies; or

(iii) made an agreement with a membership organisation to meet his legal costs;

(j) ‘insurance premium’ means a sum of money paid or payable for insurance against the risk of incurring a costs liability in the proceedings, taken out after the event that is the subject matter of the claim;

(k) ‘membership organisation’ means a body prescribed for the purposes of section 30 of the Access to Justice Act 1999 (recovery where body undertakes to meet costs liabilities);

(l) ‘paying party’ means a party liable to pay costs;

(m) ‘percentage increase’ means the percentage by which the amount of a legal representative’s fee can be increased in accordance with a conditional fee agreement which provides for a success fee;

(n) ‘receiving party’ means a party entitled to be paid costs;

(o) ‘summary assessment’ means the procedure by which the court, when making an order about costs, orders payment of a sum of money instead of fixed costs or ‘detailed assessment’.

(2) The costs to which the rules in this Part apply include—

(a) where the costs may be assessed by the court, costs payable by a client to his solicitor; and

(b) costs which are payable by one party to another party under the terms of a contract, where the court makes an order for an assessment of those costs.

(3) Where advocacy or litigation services are provided to a client under a conditional fee agreement, costs are recoverable under this Part notwithstanding that the client is liable to pay his legal representative’s fees and expenses only to the extent that sums are recovered in respect of the proceedings, whether by way of costs or otherwise.

(4) In paragraph (3), the reference to a conditional fee agreement is to an agreement which satisfies all the conditions applicable to it by virtue of section 58 of the Courts and Legal Services Act 1990(2).

Property and affairs – the general rule

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

Personal welfare – the general rule

157.  Where the proceedings concern P’s personal welfare the general rule is that there will be no order as to the costs of the proceedings or of that part of the proceedings that concerns P’s personal welfare.

Apportioning costs – the general rule

158.  Where the proceedings concern both property and affairs and personal welfare the court, insofar as practicable, will apportion the costs as between the respective issues.

Departing from the general rule

159.—(1) The court may depart from rules 156 to 158 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 his case, even if he has not been wholly successful; and

(c) the role of any public body involved 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 issue;

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

(d) whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response.

(3) Without prejudice to rules 156 to 158 and the foregoing provisions of this rule, the court may permit a party to recover their fixed costs in accordance with the relevant practice direction.

Rules about costs in the Civil Procedure Rules to apply

160.—(1) Subject to the provisions of these Rules, Parts 44, 47 and 48 of the Civil Procedure Rules 1998 (“the 1998 Rules”) shall apply with the modifications in this rule and such other modifications as may be appropriate, to costs incurred in relation to proceedings under these Rules as they apply to costs incurred in relation to proceedings in the High Court.

(2) The provisions of Part 47 of the 1998 Rules shall apply with the modifications in this rule and such other modifications as may be appropriate, to a detailed assessment of the remuneration of a deputy under these Rules as they apply to a detailed assessment of costs in proceedings to which the 1998 Rules apply.

(3) Where the definitions in Part 43 (referred to in Parts 44, 47 and 48) of the 1998 Rules are different from the definitions in rule 155 of these Rules, the latter shall prevail.

(4) Rules 44.1, 44.3(1) to (5), 44.6, 44.7, 44.9, 44.10, 44.11. 44.12 and 44.12A of the 1998 Rules do not apply.

(5) In rule 44.17 of the 1998 Rules, the references to Parts 45 and 46 do not apply.

(6) In rule 47.3(1)(c) of the 1998 Rules, the words “unless the costs are being assessed under rule 48.5 (costs where money is payable to a child or a patient)” are removed.

(7) In rule 47.3(2) of the 1998 Rules, the words “or a district judge” are removed.

(8) Rule 47.4(3) and (4) of the 1998 Rules do not apply.

(9) Rules 47.9(4), 47.10 and 47.11 of the 1998 Rules do not apply where the costs are to be paid by P or charged to his estate.

(10) Rules 48.2, 48.3, 48.6A, and 48.10 of the 1998 Rules do not apply.

(11) Rule 48.1(1) of the 1998 Rules is removed and is replaced by the following: “This paragraph applies where a person applies for an order for specific disclosure before the commencement of proceedings”.

Detailed assessment of costs

161.—(1) Where the court orders costs to be assessed by way of detailed assessment, the detailed assessment proceedings shall take place in the High Court.

(2) A fee is payable in respect of the detailed assessment of costs and on an appeal against a decision made in a detailed assessment of costs.

(3) Where a detailed assessment of costs has taken place, the amount payable by P is the amount which the court certifies as payable.

Employment of a solicitor by two or more persons

162.  Where two or more persons having the same interest in relation to a matter act in relation to the proceedings by separate legal representatives, they shall not be permitted more than one set of costs of the representation unless and to the extent that the court certifies that the circumstances justify separate representation.

Costs of the Official Solicitor

163.  Any costs incurred by the Official Solicitor in relation to proceedings under these Rules or in carrying out any directions given by the court and not provided for by remuneration under rule 167 shall be paid by such persons or out of such funds as the court may direct.

Procedure for assessing costs

164.  Where the court orders a party, or P, to pay costs to another party it may either—

(a) make a summary assessment of the costs; or

(b) order a detailed assessment of the costs by a costs officer,

unless any rule, practice direction or other enactment provides otherwise.

Costs following P’s death

165.  An order or direction that costs incurred during P’s lifetime be paid out of or charged on his estate may be made within 6 years after P’s death.

Costs orders in favour of or against non-parties

166.—(1) Where the court is considering whether to make a costs order in favour of or against a person who is not a party to proceedings—

(a) that person must be added as a party to the proceedings for the purposes of costs only; and

(b) he must be given a reasonable opportunity to attend a hearing at which the court will consider the matter further.

(2) This rule does not apply where the court is considering whether to make an order against the Legal Services Commission.

Remuneration of a deputy, donee or attorney

167.—(1) Where the court orders that a deputy, donee or attorney is entitled to remuneration out of P’s estate for discharging his functions as such, the court may make such order as it thinks fit, including an order that—

(a) he be paid a fixed amount;

(b) he be paid at a specified rate; or

(c) the amount of the remuneration shall be determined in accordance with the schedule of fees set out in the relevant practice direction.

(2) Any amount permitted by the court under paragraph (1) shall constitute a debt due from P’s estate.

(3) The court may order a detailed assessment of the remuneration by a costs officer, in accordance with rule 164(b).

Practice direction as to costs

168.  A practice direction may make further provision in respect of costs in proceedings.

(1)

1990 c. 41.

(2)

Section 58 was substituted by section 27(1) of the Access to Justice Act 1999 (c. 22).