ACC & Ors ( property and affairs deputy ; recovering assets costs for legal proceedings) [2020] EWCOP 9 (27 February 2020 )

ACC & Ors ( property and affairs deputy ; recovering assets costs for legal proceedings) [2020] EWCOP 9 (27 February 2020 )

A property and affairs deputy’s general authority does not extend to conducting litigation or instructing solicitors for contentious matters without specific court authorisation, except for modest non-contentious legal advice up to £2,000 + VAT. Where a deputy instructs their own or associated firm, robust conflict management is required, including obtaining comparative quotes. Retrospective authorisation for costs may be granted if the deputy acted in P’s best interests. Deputies or associated persons should not charge for acting as litigation friend without specific court authority.

Citation
[2020] EWCOP 9
Parties
Applicant Deputy for ACC and HPP: Irwin Mitchell Trust Corporation Ltd; Applicant Deputy for JDJ: Kelly Greig; Litigation Friend for Acc, Hpp, JDJ: Official Solicitor; Second Respondent: Public Guardian
Jurisdiction
England and Wales
Procedural Posture
Court of Protection Property and Affairs / Judgment on Joined Applications for Authorisation of Legal Costs and Guidance
Outcome
Applications for retrospective authorisation of legal costs for ACC and JDJ granted; application for authority to charge for acting as litigation friend in HPP refused.
Legal Topics
Deputyship, Legal Costs, Conflict of Interest, Authority to Instruct Solicitors, Litigation Friend, Retrospective Authorisation
Mental Capacity Court of Protection Property and Affairs Deputyship Legal Costs Conflict of Interest Authority to Instruct Solicitors Litigation Friend +1 more

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Parties

Irwin Mitchell Trust Corporation Ltd

Applicant Deputy for ACC and HPP

Kelly Greig

Applicant Deputy for JDJ

Official Solicitor

Litigation Friend for Acc, Hpp, JDJ

Public Guardian

Second Respondent

Procedural Posture

Court of Protection Property and Affairs / Judgment on Joined Applications for Authorisation of Legal Costs and Guidance

Legal Issues

  1. 1 Whether and in what circumstances a property and affairs deputy can recover from the protected person’s assets costs incurred in legal proceedings, especially when instructing their own or associated firm;
  2. 2 What authorisation is required for a deputy to conduct litigation or instruct solicitors;
  3. 3 Whether a deputy or associated trust corporation can act as litigation friend and charge for so acting;

Ratio Decidendi

A property and affairs deputy’s general authority does not extend to conducting litigation or instructing solicitors for contentious matters without specific court authorisation, except for modest non-contentious legal advice up to £2,000 + VAT. Where a deputy instructs their own or associated firm, robust conflict management is required, including obtaining comparative quotes. Retrospective authorisation for costs may be granted if the deputy acted in P’s best interests. Deputies or associated persons should not charge for acting as litigation friend without specific court authority.

Court Disposition

Applications for retrospective authorisation of legal costs for ACC and JDJ granted; application for authority to charge for acting as litigation friend in HPP refused.

Orders

  • Retrospective authorisation granted for legal costs incurred by deputies for ACC and JDJ.
  • Authority to charge for acting as litigation friend in HPP refused.