In a recent case, the Court of Appeal has considered when it might be appropriate to make an award of costs (over and above fixed costs) in Small Claims Track cases on the basis of unreasonable behaviour. Whilst declining to provide details of the circumstances which might give rise to such an award, the Court suggested that a similar approach to that adopted in wasted costs applications would be appropriate. The case was Dammerman v Lanyon Bowdler LLP [2017] EWCA Civ 269, which had begun life as a claim by a mortgagor complaining at the extent of the costs claimed by solicitors appointed on behalf of the mortgagee in effecting a sale of the Claimant’s property following his default on mortgage payments. At first instance, the Deputy District Judge found that the Claimant had no locus standi for his complaint on the basis that there was no contractual relationship between the Claimant and the Solicitors nor was there an agency relationship. The Claimant was given permission to appeal and the appeal hearing was before the same Judge who granted that permission. However, the Judge was entirely in agreement with a detailed skeleton argument from the Defendant which established that the Deputy District Judge had come to the right conclusion, albeit perhaps not necessarily based upon the correct grounds. The appeal was therefore dismissed and the Judge awarded costs to the Defendant on the basis that the Claimant had behaved unreasonably. In finding that the Claimant had behaved unreasonably, the Judge took account of the rejection by the Claimant of £1000 offer to settle (which the Judge considered was a generous offer) but even leaving that to one side, found that on the basis of the skeleton argument from the Defendant, served 6 or 7 weeks before the hearing, it should have been apparent to the Claimant that he was “barking up the wrong tree” in his arguments and that he was doomed to failure. On appeal to the Court of Appeal, this was overturned. The Claimant argued that in circumstances where the same Judge who had heard the appeal had given permission for the appeal, it could not be said that it was unreasonable for him to have pursued it. He also argued that the point of law was obscure particularly because the mortgage deed itself indicated that there was an agency relationship. He also felt that it was wrong for the Judge to have taken account of the rejection of the offer in circumstances where he had made a counter proposal. The Court considered the wording of the relevant provisions. By CPR 27.14(2): “the court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses, including those relating to an appeal, except: …” There then follows a list of exceptions, the only one applicable to this case is (g): “Such further costs as the court may assess by the summary procedure and ordered to be paid by a party who has behaved unreasonably.” And CPR 27.14(3): “A party’s rejection of an offer in settlement will not of itself constitute unreasonable behaviour under paragraph 2(g) but the court may take it into consideration when it is applying the unreasonableness test.” The Court found that in the circumstances the first two arguments from the Claimant had “considerable force” and that they led to the conclusion that the appeal must succeed. The Court found that the approach of the Judge in relation to the offer was appropriate because he had clearly simply taken it into account and not based his hold decision solely on that aspect. In terms of the more general approach, as we have indicated, the Court did not feel it appropriate to specify particular circumstances in which a party might be found to have behaved unreasonably because such cases would be fact sensitive. However, drawing a comparison with the wasted costs provisions the Court quoted Sir Thomas Bingham MR: “… conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting in a practitioner’s judgment, but it is not unreasonable,” Ridehalgh v Horsefield [1994] Ch 205, 232F. And went on to say that this should give sufficient guidance forward Judges dealing with cases allocated to the Small Claims Track. The Court felt that the meaning of “unreasonably” would not be different when applied to litigants in person in such cases. The Judgment concludes with the comment that it would be unfortunate if people were deterred from using the Small Claims Track by being found to have behaved unreasonably and therefore potentially becoming liable for costs. Therefore, whilst very close consideration would have to be applied to the particular facts of any case in question, this does give a very good “steer” as to the appropriate consideration to be undertaken when faced with such a situation. Issues of recoverability in the small claims track often intersect with broader costs assessment strategy, including how work conducted by different fee earners is justified and quantified. For insight into the distinction between costs lawyers and law costs draftsmen , and how that distinction can influence recoverability and argument strategy, see our explanation on costs roles and responsibilities. When Conduct Becomes a Recoverability Issue While small claims costs are limited, the principles behind unreasonable behaviour mirror wider assessment themes seen in higher-value litigation. Courts increasingly scrutinise conduct, proportionality and the way litigation has been pursued, issues that can affect recoverability far beyond the small claims track. Questions about whether work was properly undertaken, appropriately delegated , or compliant with procedural and regulatory requirements are no longer confined to large commercial disputes, but form part of the broader assessment landscape. Conduct must withstand scrutiny at assessment. Arguments around conduct and proportionality also feature in paying party local authority costs disputes.

Issues surrounding retainers and client invoicing are not just solicitor–client concerns. They frequently resurface later during costs assessment, where paying parties examine whether costs were properly incurred under a valid retainer. If the retainer wording, scope of authority, or charging structure is unclear, opponents may argue that work was not recoverable at all, not because it was unnecessary, but because the entitlement to charge was defective. The case below highlights how retainer issues can have consequences beyond the solicitor-client relationship In a previous blog we dealt with some issues which arise if the retainer between a Solicitor and Client has not been well thought through. We now have another case where such a retainer has been subjected to close scrutiny by the Court, this time in relation to whether invoices rendered to the client were effectively requests for payment on account or, alternatively, self-contained (“statute”) bills which were capable of being sued upon. The lesson to be learned? If you want to be able to send a statute bill – say so, very clearly, in the retainer document. In these days, a Solicitor who does not carefully think about funding and cash flow will probably be characterised as being either too rich or too lazy. For the vast majority of practitioners, ensuring that a client fully understands the invoicing regime is crucial not only in terms of the financial aspects, but also to ensure that there are no surprises and that the client is kept happy. Perhaps the best way to start here therefore is to consider the fairly brief summary of the relevant law set out in Bari v Rosen [2012] EWHC 1782 (QB): 13 … Where a solicitor issues to his client a bill of costs which complies with the requirements of the Solicitors Act 1974 it is known colloquially as a “statute bill”. Section 70(1) of the Act gives the client the right, within one month of delivery of the bill, to apply to the High Court for the bill to be assessed, without requiring any sum to be paid into court. If no such application is made, the absolute right to assessment is lost. However, if a statute bill has not been paid and the client applies to the High Court for assessment of the bill within twelve months from delivery of the bill, the combined effect of s 70(2) and (3) is that the High Court may allow assessment (and I am advised by my assessors usually does allow assessment), on such terms as the court thinks fit. If the bill remains unpaid and twelve months have expired from delivery of the bill, the court may only order an assessment if special circumstances are shown. 14 The position after a statute bill has been paid is somewhat different. The client still has the absolute right to an assessment before the expiry of one month from delivery of the bill. After that, but only up to twelve months from the date of payment, if the client applies for assessment, special circumstances need to be shown. No assessment at all can be ordered after the expiration of twelve months from payment. Section 70(4) creates an absolute bar. For completeness I should mention that there are additional provisions where the solicitor has obtained judgment on the bill, but this does not arise in the present case. All of this was relevant in the case of Vlamaki v Sookias & Sookias [2015] EWHC 3334 (QB), where the High Court was dealing with an appeal from Master Campbell in the SCCO in a matter where the Claimant sought leave to have assessment of her Solicitors’ costs. At the heart of the case was whether various invoices rendered to the client whilst matters were continuing should be treated as final bills for the work done in the periods to which they related – and thus the clock would be ticking for the various time limits in section 70 set out above. The High Court rehearsed the argument that in general, a retainer between a Solicitor and client is an “entire contract” and the Solicitors can only claim remuneration when either all of the work is completed or there has been a natural break in the matter. However, this is subject to any express agreement to the contrary and it is perfectly in order for Solicitors to seek to agree a different provision. Thus, the general rule will be that invoices rendered during the course of a matter will be treated as requests for payment on account rather than final, or what are commonly called “statute bills”. It is permissible for a Solicitor to transfer money from client account to office account when money has been paid in by the client even if that is not pursuant to a statute bill, provided that the amount so transferred does not exceed the work actually done. The main benefit of treating such invoices as no more than payments on account is that it is open to the Solicitor to adjust the charges at the conclusion of the matter (upwards or downwards) in order to reflect the particular circumstances of the case. Most Solicitors will be aware of the so-called “7 pillars of wisdom” which are directly relevant to Solicitors’ charges and which may mean (again depending upon what is actually in the retainer) that until the matter has been concluded the appropriate amount to be charged cannot be properly known. On the other hand, a statute bill cannot be adjusted later, but if it is not paid, then the Solicitor will be able to sue upon it without waiting until the end of the matter. In this case, Master Campbell had found that the retainer did not contractually entitle the Solicitors to render Statute bills during the currency of each matter. After a close analysis of the wording of the retainer, the High Court agreed with the Master. In interpreting the retainer, the Court proceeded on the basis of the fundamental principles that where there was ambiguity, this would be construed against the Solicitors and that the client here was not a lawyer and therefore could not be assumed to know the provisions of the Solicitors Act (or indeed the law generally). The Court took account of the provisions in the retainer which suggested that interest could be charged upon these invoices if they were not paid and that the Solicitors could insist upon their payment, but found that to a layperson, they would not understand the wording to represent the right to deliver statute bills. In construing the retainer against the Solicitors, the Court found that it was not in the client’s interest for these invoices to be treated as statute bills and approved the consideration of Master Leonard at first instance in Bari in which he said: “The potential difficulties and expense faced by a client who can only challenge regular bills by instituting multiple assessment proceedings – against the same solicitor who is actively handling a number of current matters … – are obvious. Further, the choice is between a right which begins to diminish after one month from the first regular bill and a right which does not begin to diminish until a later and, for the client, obviously more practicable time.” The most fundamental point which the Court made here was that the retainer lacked an express statement that each interim invoice would be a final (statute) bill. It is clear from the Judgement that if Solicitors want interim invoices to be treated as statute bills then they had best set that out explicitly and extremely clearly in their retainer documentation. So far so good for the Claimant. However, there was a very neat argument from the Defendants which rather left the Claimant being “hoist by her own petard”. The Defendant said that if the Court was against them on their contention that the invoices should be treated as statute bills, then it must surely follow that there had been no statute bills delivered and therefore the Claimant’s application for a Solicitors Act Assessment must be premature. After considering the construction of a letter written by the Defendants upon termination of their retainer, the Court found that this letter could not convert what had previously been no more than requests for payment on account into Statute bills. At first instance, Mastic Campbell had found that this letter had the effect of bringing the series of bills to a head and that the final invoice should be treated as a statute bill to incorporate all of the previous invoices done. The High Court disagreed and therefore the Claimant was left in a position where the application for assessment of the invoices could not proceed because no final or statute bill had ever been delivered. Practical Steps Firms Should Take To reduce exposure to retainer-based challenges during assessment: Ensure engagement letters clearly define scope and charging structure Record supervision and delegation transparently Avoid ambiguous “all work required” descriptions Review retainer wording when matters change in complexity Seek specialist input where recoverability could be questioned Why This Matters in Costs Disputes Retainer problems rarely stay confined to client complaints. They are increasingly deployed by paying parties during detailed assessment to argue that: Work was not authorised The scope of the retainer did not cover the activity claimed Charging arrangements were unclear or non-compliant The indemnity principle prevents recovery These arguments often appear late in proceedings, when positions are entrenched and the sums at stake are significant. Clear retainer drafting and structured time recording are therefore not merely administrative issues, they are central to protecting costs recovery. The Strategic Point Retainer issues are often viewed as professional conduct matters. In reality, they are costs risk issues . A technically strong case can still suffer reductions if entitlement to charge is not clearly evidenced. Specialist costs professionals regularly encounter these arguments during assessment. Addressing potential vulnerabilities early is far easier than defending them once raised.

The Civil Legal Aid (Procedure and Remuneration) (Amendment) Regulations 2025 , due to come into force on 22 December 2025 , introduce long-awaited increases to civil legal aid remuneration. For firms undertaking Controlled Work, particularly in the housing and immigration sectors, the reforms represent a material shift in funding levels. Controlled Work Uplifts The Regulations provide substantial uplifts to Controlled Work fees: Housing-related Controlled Work : 42% increase Immigration and asylum Controlled Work : 31% increase These increases reflect the time-intensive nature of this work and the sustained pressure placed on providers by inflation and rising operating costs. New Minimum Hourly Rates Minimum hourly rates have been revised and formally set at: £65.35  for work conducted outside London £69.30  for London-based work While still modest by commercial standards, the introduction of updated national minimum rates provides greater clarity and consistency when assessing remuneration under the civil legal aid scheme, particularly where work falls outside fixed-fee arrangements. Fixed Fee Adjustments Fixed fees will either: rise proportionately , or increase by a minimum of 10% , whichever results in the higher figure. This mechanism avoids fixed fees lagging behind hourly rates — a recurring issue in previous remuneration reforms — and should benefit firms operating high-volume legal aid practices. Practical Considerations for Providers From a costs perspective, firms should be alert to: transitional issues for cases spanning the commencement date, updated billing and costing assumptions from December 2025, the interaction between revised hourly rates and fixed-fee escape provisions, and the impact of the new rates on supervision and preparation time allowances. Early planning will be key to ensuring firms maximise recovery under the revised scheme. Our Costs Expertise At SPH Costs , we regularly advise legal aid providers on remuneration disputes, billing compliance and recovery under the civil legal aid framework. The 2025 Regulations introduce welcome change, but careful costs management remains essential to ensure firms obtain full entitlement under the scheme. For practical guidance on preparing and submitting legal aid costs claims following fee changes, see our Legal Aid costs drafting guide.

The Legal Aid Agency’s Client and Cost Management System (CCMS) is now entrenched in everyday practice for legal aid firms. However, despite years of use, many solicitors and caseworkers still face frustrating CCMS rejections, delays, or requests for further information — all of which slow down cash flow and create unnecessary administrative burdens. With the reintroduction of the portal imminent, now is a good time to revisit common reasons for rejection. The vast majority of CCMS problems are avoidable. Below is a practical guide to the most common CCMS errors  we see every week, along with clear, actionable steps to help you prevent rejections and keep your submissions moving smoothly. 1. Missing or Incomplete Supporting Evidence The error: Uploading the wrong supporting documents, missing mandatory evidence, or submitting documents that aren’t legible or properly named. Why it causes rejections: CCMS requires specific evidence to justify both the application and the costs. If the LAA cannot immediately see what they need, they will reject or query the submission. How to avoid it: Use a checklist  for each application or claim type. Ensure all files are clearly titled  (e.g. “Means Evidence – May 2024”). Upload documents as PDFs , not scans of scans or photos. Always check that the document is visible and readable  before submitting. Tip:  Have a standardised internal template of required evidence for each matter type (Family, Housing, Community Care, Immigration, etc.). 2. Incorrect or Inconsistent Time Recording The error: Unclear narratives, inconsistent times between attendance notes and CCMS entries, or time recorded without an explanation of necessity. Why it causes rejections: The LAA must be able to follow your “story of the case.” If the narrative is vague (“Phone call”, “Work on file”), the assessor is more likely to challenge or reduce your costs. How to avoid it: Record who  did the work, why , and what it achieved . Ensure that your attendance notes match your CCMS entries. Avoid vague descriptions — always show the purpose and outcome . Example of weak note: “Email to client.” Strong note: “Email to client explaining next steps in child arrangements proceedings and confirming hearing date.” 3. Submitting the Wrong Matter Type or Level The error: Choosing the incorrect matter type, assigning the wrong level of service, or selecting an inapplicable stage in the proceedings. Why it causes rejections: The CCMS workflow depends heavily on correct matter categorisation. If the wrong type is selected, the assessment team may automatically reject or request amendments. How to avoid it: Double-check the matter type  before starting the application. Train staff on the correct categories for common cases. Use internal crib sheets listing typical scenarios (e.g. “Non-Molestation → Domestic Abuse Matter Type”). 4. Incorrect Disbursement Information The error: Missing invoices, incorrect provider details, disbursements without justification, or trying to claim non-permitted items. Why it causes rejections: Disbursements must be justified, reasonable, and supported by evidence. The LAA is especially strict on expert fees. How to avoid it: Always attach the invoice  or expert quotation . Make sure the expert is LAA-compliant  with correct CV and details. Provide a clear justification  for why the disbursement was necessary. Use clear titles like “Psychologist Invoice – Dr Smith – £650”. 5. Failing to Track and Respond to “Further Information” Requests The error: Missing or late responses to LAA queries, often because they get buried in the task list or no one is monitoring notifications. Why it causes rejections: If you don’t respond in time, the claim can be rejected simply due to inactivity. How to avoid it: Allocate a staff member to check CCMS daily . Use case management systems that integrate CCMS alerts. Maintain an internal “CCMS Queries Log”  to ensure nothing is missed. When responding, answer all points clearly in the same message  to avoid back-and-forth. 6. Incorrect Provider Details or Cost Limit Requests The error: Submitting applications with outdated office details, incorrect fee earner rates, or cost limit requests that don’t reflect the complexity or stage of the case. Why it causes rejections: Incorrect details automatically trigger queries or force amendments. How to avoid it: Keep CCMS provider records up to date . Ensure hourly rates match the relevant Civil Finance Guidance . When requesting an uplift to cost limits, always provide: A short summary of case progress Details of complexity Estimated future work Clear justification for why the increased limit is needed 7. Poor Quality Bills of Costs The error: Bills uploaded with missing narratives, incorrect categories, or inconsistent totals between the bill and CCMS. Why it causes rejections: The LAA relies heavily on the accuracy and clarity of your bill. If it doesn’t reflect the file or doesn’t comply with legal aid billing rules, it will be rejected. How to avoid it: Ensure your bill is drafted by a specialist costs draftsman . Cross-check totals and categories before upload. Include clear narratives describing the complexity and key case events. Never upload a bill that isn't fully checked — errors cause major delays. 8. Using the Wrong Document Type When Uploading Files The error: Uploading vital information under categories like “Correspondence” or “Other”. Why it causes rejections: CCMS uses document type labels to route the case for approval. Incorrect categorisation = delays or rejections. How to avoid it: Always match the document to the correct CCMS label (e.g. “Court Order”, “Means Evidence”, “Bill of Costs”, “Expert Invoice”). Avoid the “Other” category except for genuinely uncategorisable material. 9. Not Keeping Digital Files CCMS-Ready The error: Uploading overly large files, incorrectly rotated documents, poor scans, or bundles with no pagination. Why it causes rejections: The LAA often rejects submissions that are difficult to read or navigate. How to avoid it: Ensure all PDFs: Are scanned at 300 DPI Are right-side-up Are properly paginated Are under CCMS size limits Avoid photographs of documents. Use PDF combining/compression tools. Conclusion Most CCMS rejections are preventable. With systematic checks, clearer narratives, and properly prepared supporting evidence, you can dramatically reduce delays, avoid unnecessary queries, and maintain a smooth funding and billing process. If you’d like help preparing CCMS submissions, drafting Legal Aid bills, avoiding rejections, or improving cashflow through better CCMS workflows, SPH Costing Services can support you with expert, compliant Legal Aid costs preparation . Legal Aid costs claims frequently involve technical issues around billing, assessment, and compliance with Legal Aid Agency requirements. Specialist Legal Aid costs drafting support is often required to ensure claims are prepared and progressed correctly within the applicable framework. Our Legal Aid costs drafting services are explained in more detail on our Legal Aid Costs Drafting

Two days ago, the LAA officially launched LAA Silas , marking a significant milestone in the ongoing effort to modernise and streamline key processes across the sector. The introduction of this new system has already sparked interest, with many welcoming its potential to deliver greater clarity, efficiency, and user-focused functionality. What Is LAA Silas? LAA Silas (Sign into Legal Aid Services) is the Legal Aid Agency’s new digital platform created to enhance the way legal aid applications, assessments, and related workflows are managed. Designed with usability and transparency in mind, Silas aims to simplify processes that were previously time-consuming, reduce administrative burdens, and offer a more intuitive experience for both providers and clients. By centralising key functions and introducing improved digital tools, Silas supports smoother decision-making and helps ensure cases progress more efficiently. Changes to Legal Aid systems such as Silas have direct implications for how costs are prepared, submitted and assessed, which is why specialist support with Legal Aid costs drafting, CCMS claims and assessment strategy  is often required. At SPH Costing Services Ltd , we are fully embracing this development. We recognise the positive impact LAA Silas can bring to costing, case management, and overall workflow improvements. As the system continues to roll out, we are committed to adapting smoothly, supporting our clients through the transition, and making the most of the opportunities this new platform offers. The launch of LAA Silas signals an exciting shift toward a more streamlined future, and we look forward to being part of that journey. Need Help? The LAA have launched a specific learning platform at: https://legalaidlearning.justice.gov.uk/sign-in-to-legal-aid-services/ Or contact us to discuss your requirements.

The Court has published the information below. Below is the latest information on current processing times received from the Senior Court Costs Office: Current Processing Dates : ·         For e-filings that have been submitted but not yet accepted or rejected, we are currently working on new bill filings submitted the week commencing:   17 th  November 2025 ·         Costs Officers  are currently being assigned bills of costs for which supporting papers were received in the last week of October 2024 ·         The Admin Team  is currently sending out assessed bills that were returned to them by the Costs Officers the week commencing 24th November 2025 ·         The admin team is currently sending out certificates submitted week commencing 17 th November 2025 Enquiry Guidance To help us focus resources on reducing the backlog, we kindly ask that you avoid chasing the following: ·         E-filings submitted during or after the week commencing   17 th November 2025 ·         that have not yet been accepted or rejected. ·         Bills for which supporting paperwork was submitted in the last week of October 2024  onwards. ·         Final Costs Certificates where less than two weeks  have passed since confirmation of acceptance. Operational Updates & Improvements We understand delays can be frustrating, and we are working hard to improve the situation. The reduction in follow-up queries is helping us dedicate more time to clearing the backlog. Measures are being taken to improve processing times in the longer term. These include Training of New Staff & Recruitment of New Cost Officers. Additional Notes Any updates provided on individual bills are estimates only . Staff are unable to guarantee when a specific case will be processed.

Managing the affairs of someone who lacks capacity is an enormous responsibility. Deputies must ensure the protected party’s needs are met, all decisions are properly documented, and costs remain reasonable and proportionate. Yet, when it comes to preparing Court of Protection (COP) bills, many deputies unintentionally undersell the time and care involved in their work. At a time of increasing scrutiny by the Senior Courts Costs Office (SCCO), maximising COP bills is not about inflating costs — it’s about accurately reflecting the work actually done , ensuring the deputyship remains financially sustainable and compliant. Below are practical steps deputies can take to ensure their costs are properly recorded, justified, and recoverable. 1. Keep Detailed, Contemporaneous File Notes The single most important factor in maximising recoverable costs is the quality of your file notes. Strong file notes should: Record who did the work , why it was necessary , and what outcome it achieved Be made at the time  the work was done (or as close as possible) Reflect not only actions, but also professional judgment  and decision-making For example, instead of : “Phone call with care home.” Use: “Spoke with care home manager regarding concerns about deterioration in P’s mobility. Agreed urgent review of care plan to ensure appropriate support.” This level of detail demonstrates necessity and avoids reductions. 2. Properly Record Travel and Mileage Travel is often under-recorded or poorly justified, leading to avoidable reductions. To maximise recovery: Record start and finish times Note the purpose  of the visit and why it couldn’t be handled remotely Ensure mileage records are consistent with mapping tools Consider whether the seniority of the fee earner attending is proportionate In-person visits remain vital in deputyship work — but must be clearly justified. 3. Ensure All Work Categories Are Captured Deputyship work spans many categories, but common areas are often missed or under-recorded. Frequently overlooked items include: Liaising with social services Ensuring compliance with deprivation of liberty safeguards (DoLS) Managing disputes with family members Reviewing bank statements and analysing spending Arranging and attending multidisciplinary team meetings Time spent preparing statutory visit packs for OPG visits Responding to safeguarding alerts Small increments of time quickly add up over a year. 4. Distinguish Between Administrative and Deputy-Level Work The SCCO expects deputies to delegate appropriately — but also recognises that certain tasks must be performed by the deputy or a fee earner. Deputy-only tasks typically include: Complex decision-making Financial planning Best-interests decisions High-level risk management If a more junior fee earner or admin staff member completes a task, record it as such — but ensure deputies record their supervisory role . Delegation helps show proportionality and improves recoverability. 5. Review Hourly Rates and Update Annually Many COP bills under-recover simply because the hourly rates are outdated. Deputies should: Ensure annual applications for general management increases are made where appropriate Use guideline hourly rates correctly and update them when revised Clearly justify uplifts (e.g., where a case is especially complex or high-risk) Failing to maintain correct rates results in automatic reductions — even when the work was necessary and reasonable. 6. Provide Evidence of Complexity Complexity supports higher rates and greater time expenditure, but must be demonstrated , not assumed. Useful evidence includes: Challenging behaviour Multi-agency involvement High-value or high-risk financial assets Frequent safeguarding concerns Complex care or medical needs Your file should tell the story of the case’s complexity. If it doesn’t, your bill won’t either. 7. Keep Clear Financial Management Records Financial tasks make up a significant portion of deputyship work, yet they are often insufficiently recorded. Make sure you: Document every financial decision Record time spent reviewing accounts, budgets, and care costs Keep clear audit trails of payments Record time spent liaising with investment advisers or managing property matters This demonstrates due diligence and safeguards against potential challenge. 8. Prepare Yearly Schedules of Work Preparing a year-end summary helps ensure the final bill is comprehensive and consistent. A good schedule should include: Total time per fee earner Key events and decision-making milestones Breakdown of categories (property, finances, health/welfare, supervision, visits) This also supports deputyship reporting obligations. 9. Engage a Specialist Costs Draftsman Early A costs draftsman experienced in Court of Protection matters can: Identify missing work categories Correct inconsistencies Maximise recoverable time Prepare a fully compliant bill Provide advice on future file-keeping improvements Reduce the risk of SCCO queries or reductions Many deputies find that early involvement not only improves recoverability but enhances compliance. Conclusion Maximising Court of Protection bills is not about increasing costs artificially — it’s about ensuring the time, expertise, and responsibility involved in deputyship work is properly captured and justified . By maintaining detailed records, evidencing complexity, delegating appropriately, and reviewing your rates and processes regularly, deputies can significantly improve their recoverable costs while remaining fully compliant with COP and SCCO expectations. If you’d like help preparing or reviewing your Court of Protection bills, optimising your file-keeping practices, or minimising SCCO reductions, SPH Costing Services can support you every step of the way.

Latest Guidance on Proportionality ERNST MALMSTEN v LARA BOHINC [2019] EWHC 1386 (Ch) In this Commercial matter the Judgement of The Honourable Mr Justice Marcus Smith provides further guidance on the application of proportionality when assessing between the parties costs. The case further confirms that VAT and the costs of drawing the bill for Detailed Assessment should be excluded when considering proportionality. The proportionality test to be applied when considering the amount to be allowed is helpfully summarised at paragraph 69 of the Judgement: “I consider that the sum of £47,500 should be reduced to a sum of £15,000 (plus, obviously, VAT). My reasons for reaching this figure or – to put it another way – for reducing the sum of £47,500 by some £32,500 are as follows: (1) I consider that the approach a court must take when considering proportionality is well-put in Friston: "What still remains a relative mystery, however, is how the adjustment ought to be made. Whilst no more than his own thoughts on the matter (which could well be wrong), the editor believes that it is no coincidence that those factors that are listed in CPR 44.3(5) are precisely those factors that would be of especial importance to clients of legal services providers. Clients do not care about reasonableness, necessity, time spent and other such niceties; indeed, they are often aghast at the so-called reasonable fees that their legal services providers charge. They care about more fundamental – usually commercial – matters, such as the amount at stake, how difficult the litigation is, how badly (or well) their opponents are behaving, etc. These are the factors that are listed in CPR 44.3(5) and are the factors that will tend to govern the extent to which clients are prepared to put their hands in their pockets. If this is right, then – by analogy with other tests that govern the amount of costs – the test could well be the amount that a hypothetical reasonable litigant of adequate but not extravagant means would, in all the relevant circumstances, regards as bearing a "reasonable relationship" to the factors in CPR 44.3(5). Conceptually, this is not a difficult test to apply because – whilst an oversimplification – it boils down to a very simple question: "Focusing on what really mattered to the litigants, what would a reasonable client have been prepared to pay in all of the relevant circumstances?"" (2) It is, however, necessary to sound a warning against too client-centric an approach to proportionality. The law is, unfortunately, both complex and complex to navigate: that is why clients need lawyers in the first place, and it is necessary to appreciate that the costs figure arising out of a detailed assessment or even in a summary assessment cannot simply be disregarded. The costs appearing in such an assessment have been professionally compiled and must be given due weight. The position is a fortiori when there is an approved or agreed costs budget in place. (3) So, as it seems to me, the starting point for the proportionality assessment will be the figure put forward by the legal representative, after an item-by-item review if this has occurred. Thereafter, it is a question of the extent to which – knowing the way lawyers charge, and the fact that, to at least some extent, the client will have been informed of this – this figure fails the proportionality test. A judge assessing such figures may have regard to "like" cases and to what the other side has charged its client, but at the end of the day the application of the proportionality criterion is intended not as a test for ensuring that the costs are indeed reasonable or even necessary, but as a separate and self-standing control. (4) The costs for the section 306 application made by Ms Bohinc are, without any doubt, excessive. That is, no doubt, in part because the Master included as recoverable costs which, so I have found, fell outwith the costs order made by the Registrar. It may well be that such costs represent services to Ms Bohinc that were valuable to her in terms of general advice regarding the company of which she was majority shareholder, but these were certainly not costs that Mr Malmsten should pay, as I have found. Aside from that, I find that there is no justification for the extent to which counsel was consulted nor for the number of hours spent by Ms Bohinc's solicitors. These costs were entirely disproportionate given the nature and complexity of the application. (5) I accept that these proceedings were of importance to Ms Bohinc and, to be clear, I am certainly not envisaging any discount because her solicitors went to experienced (and expensive) counsel versed in corporate law. I also accept that Mr Malmsten was not a co-operative litigant: partly, that may be due to his status as a litigant in person, but I am also quite prepared to accept the Master's finding that Mr Malmsten was trying to be awkward. Indeed, that conclusion is rather supported by the very late attempt by Mr Malmsten to re-open the Registrar's order, a matter I have described in Section C above. However, I consider that – perhaps more by luck than judgment – Mr Malmsten's conduct in this case did not actually have an effect on the level of costs, as I have already noted. (6) In reaching a figure of £15,000, I have been cautious to err on the side of generosity to Ms Bohinc. My initial reaction to the costs for the section 306 application was that it would be difficult to justify costs in excess of £12,000 inclusive of VAT. But I am conscious that I am applying a broad-brush test at the end of a detailed assessment which I have not carried out, and have therefore concluded that the sum of £15,000 plus VAT is the appropriate figure to set.” The full judgement can be found here: https://www.bailii.org/ew/cases/EWHC/Ch/2019/1386.html

In Butler v Bankside Commercial Ltd [2019] EWHC 510 QB, on Appeal, Turner J upheld the decision of the Court below that the Respondent firm of Solicitors was entitled to be paid costs incurred under the auspices of a CFA. They had sought to terminate that agreement due to their client not accepting their advice about “making a settlement with your opponent”. The Judge drew a distinction between CFA cases and other types of retainer, because where there was a CFA, the Solicitors shared risks of an adverse result at trial. The ability therefore to escape the agreement if the advice was not accepted was an important element of protection for the Solicitors’ legitimate interests. In the absence of a CFA, a client has the privilege of ignoring such advice without such consequences. The case boiled down to a question of interpretation of the phrase within the Law Society’s Model Agreement at clause 7 (b) (iii) as underlined below: "(b) Paying us if we end this agreement …(iii) We can end this agreement if you reject our opinion about making a settlement with your opponent. You must then: • Pay the basic charges and our disbursements, including barrister's fees; • Pay the success fee if you go on to win your claim for damages." The Appellant argued that advice about making an offer is not the same as advice about “making a settlement”. She argued that settlement is an active process which refers to actually settling a case usually by accepting an offer from the opponent. Simply making an offer did not equate to “making a settlement” because the making of an offer does not mean that the case settles. In the underlying claim, the Appellant had received an offer of settlement from the opponent which had not proved to be acceptable. An arbitration hearing was approaching and the Respondent here provided strong and detailed advice that a counteroffer should be made. The Appellant did not accept that advice. The retainer was therefore terminated. The Appellant went on to the Arbitration and recovered a lower figure than had been recommended together with some element of adverse costs to the opponent. (The relevance of the lower award here being that it could no longer be cogently argued that the Respondent had been attempting to persuade the Appellant to settle at an undervalue simply to ensure that the matter settled on terms which will be most beneficial to the Solicitors in terms of recovery of their costs). The Respondent was claiming the costs as assessed at the Arbitration. The proceedings in the High Court therefore were simply as to whether the Appellant had any liability to pay any sum at all to the Respondent under the terms of the CFA. There was no issue on quantum of those costs. Turner J found that on a true construction of the clause, a Solicitor’s opinion about making an offer is perfectly capable of being one which is about “making a settlement”. He commented that a settlement is an endpoint, but the making of one is a process. He added that the suggestion that “making a settlement” should be construed as being limited to the consideration of the acceptance of any offers made by the opponent was inconsistent with the language of the clause and would lead to a lack of coherence both procedurally and logically. The Judge concluded that such an interpretation did not diminish the protection for clients due to other avenues of potential difficulties for Solicitors who attempted to abuse the system to include reputational damage and the risk of being sued for negligence. This case is therefore one of some comfort for practitioners seeking to avoid having to continue to act in a case in which the prospects of success (or of beating an offer) give them course for considerable concern in relation to costs. Disclaimer: The content of this blog is provided on a complimentary basis. The opinions expressed do not necessarily represent those of SPH Costing Services Ltd. The content of the blog is not intended to and does not constitute legal advice on any specific matter or generally. Individual Legal advice should be sought from a Lawyer in relation to any specific case or issue. SPH Costing Services Ltd does not accept any responsibility for the correctness of this blog or for any consequences of relying on it.

Refusal to mediate – sanctions won’t always apply. Following the decision of Briggs LJ in PGF II SA v OMFS Company 1 Limited [2013] EWCA Civ 1288, there has been increased focus on the duties of parties to litigation to consider some form of ADR, most usually mediation. In that case, Briggs LJ said: “In my judgment, the time has now come for this court firmly to endorse the advice given in Chapter 11.56 of the ADR Handbook, that silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable, regardless whether an outright refusal, or a refusal to engage in the type of ADR requested, or to do so at the time requested, might have been justified by the identification of reasonable grounds” and went on “ this case sends out an important message to civil litigants, requiring them to engage with a serious invitation to participate in ADR, even if they have reasons which might justify a refusal, or the undertaking of some other form of ADR, or ADR at some other time in the litigation…the court’s task in encouraging the more proportionate conduct of civil litigation is so important in current economic circumstances that it is appropriate to emphasise that message by a sanction which, even if a little more vigorous than I would have preferred, nonetheless operates pour encourager les autres” However, in a more recent case before the Court of Appeal, Gore v Naheed & Ahmed [2017] EWCA Civ 369, Patten LJ has made it plain that there is some difference of opinion in that Court as to the approach to be adopted, as may be seen from his rather caustic phrasing: “Mr McNae referred us to the decision of this Court in PGF II SA v OMFS Company 1 Ltd in which Briggs LJ emphasised the need, as he saw it, for the courts to encourage parties to embark on ADR in appropriate cases and said that silence in the face of an invitation to participate in ADR should, as a general rule, be treated as unreasonable regardless of whether a refusal to mediate might in the circumstances have been justified. Speaking for myself, I have some difficulty in accepting that the desire of a party to have his rights determined by a court of law in preference to mediation can be said to be unreasonable conduct particularly when, as here, those rights are ultimately vindicated” Clearly Patten LJ struggles to accept the basic concept of some form of primacy of mediation over litigation. He went on to note that even if the failure to engage in ADR was found to be unreasonable, this would not necessarily and automatically result in a penalty in costs (a point also made by Briggs LJ in “PGF”). It is a factor to be taken into account, but not determinative of itself. There is perhaps a distinction to be drawn between failing to respond at all to an invitation to mediate and a refusal to mediate, but in Gore the Judge below had taken the refusal into account, but concluded that such a step was not unreasonable – there were complex issues of law which made the case unsuitable for mediation. The decision thus falls within the description of the law as described in “PGF”, particularly bearing in mind the fact that costs remain within the discretion of the Judge, but the emphasis on the question of refusal to mediate as to how this should be applied on any costs award is clearly weaker in Gore. The case may well therefore be a useful one to have in the armoury where there is an allegation of poor conduct on this ground.

NEW RULES ON COSTS BUDGETING & COURT HEARING FEES Two sets of amendments to the Rules are being implemented in relation to which Practitioners will need to be aware. The first relates to Hearing Fees and is already in force from 6 March 2017. The Civil Proceedings (Amendment) Order 2016 amends the timing for payment of those fees (and no doubt Notices from the Court will advise when payment is required) but significantly it also scraps the ability to recover Hearing Fees where a matter settles or is discontinued after payment of the fee, but before commencement of the Trial. The details of the Order may be found here The second amendments are to be found in the 88th Update to the CPR and are in relation to the Rules and Practice Direction on Budgets. They mean that we will now have a new phrase to add to the costs lexicon, this being “budgeted costs”. The thrust of the amendments is to draw a greater distinction between incurred and estimated (or future) costs. The phrase “budgeted costs” is now used to refer to the estimated/future costs and the amendments make it plain that it is primarily the budgeted costs which are to be dealt with at the CCMC. Further, it is the decisions made on the budgeted costs which are to be taken into account upon any detailed assessment for the purposes of CPR 3.18. This means that when assessing costs on the standard basis the Court will have regard to the receiving party’s last approved or agreed budgeted costs for each phase of the proceedings and not depart from the decision on those budgeted costs unless there is good reason to do so. This serves as clarification therefore that the particular restrictions arising from CPR 3.18 for any detailed assessment are to be in the context of the budgeted costs alone rather than the overall figure for each phase, which includes both the incurred and the budgeted costs. What then of the incurred costs? It may be remembered that in the case of SARPD Oil International Ltd v Addax Energy SA & anor [2016] EWCA Civ 120, the Court of Appeal found that in the absence of a specific challenge to the incurred costs at the CCMC, if the Budgets were presented as agreed, then that agreement extended to the incurred costs as much as to the budgeted costs. Practice Direction 3 E, paragraph 7.4 already provides that the court may not approve costs incurred before the date of any budget, but that it may record its comments on those costs and will take those costs into account when considering the reasonableness and proportionality of all subsequent costs. That provision will substantially remain in place, but is now augmented by an additional paragraph to CPR 3.15: “Whether or not the court makes a costs management order, it may record on the face of any case management order any comments it has about the incurred costs which are to be taken into account in any subsequent assessment proceedings” And further a new paragraph in CPR 3.18: “(the Court will)..take into account any comments made pursuant to rule 3.15(4) or paragraph 7.4 of Practice Direction 3E and recorded on the face of the order”. Thus the importance of raising an issue in relation to the incurred costs is enhanced by specific inclusion of these comments within the Rules as opposed to simply in the Practice Direction. As noted above, this does not appear to bind the Judge upon assessment to the same extent as decisions made on the budgeted costs, but nevertheless such comments will be at least one factor in any decision made upon assessment of the costs incurred prior to the date of the CCMC. All of this must be put into context with the anticipated Appeal hearing (see our last blog here) in relation to the extent to which a Judge upon assessment is entitled to deviate from the figures given at the CCMC and in particular whether that deviation may only be downward rather than upward, in the absence of good reason. Further, the obvious issue remains as to the extent to which the incurred costs will be debated at any CCMC given the usual time constraints which may often only be sufficient for a proper exploration of the “budgeted costs”. Will it be sufficient simply to raise a broad challenge emphasising that the paying party wishes to have the incurred costs scrutinised upon assessment because they appear “too high”? Or is there a requirement for more specific challenges, which of course may be difficult in the absence of a breakdown. It does very much appear that we are far from the end of the road on the journey to understanding how the budgeting process will work. Please contact us to discuss your requirements with one of our Costs Experts. T: 01772 435550 or 01604 604035.