ACC & Ors ( property and affairs deputy ; recovering assets costs for legal proceedings)

ACC & Ors ( property and affairs deputy ; recovering assets costs for legal proceedings)

A property and affairs deputy’s general authority does not encompass authority to conduct litigation or to pay legal costs for contentious matters from P’s funds without specific court authorisation, except for certain non-contentious tasks ancillary to management of P’s estate. Where a deputy wishes to instruct their own firm, special measures to address conflict of interest are required, including obtaining comparative quotes and, if costs exceed £2,000 + VAT, specific court authority. Retrospective authorisation may be granted in appropriate cases, but is not presumed. Charging for acting as litigation friend is not in P’s best interests where the Official Solicitor is willing to act...

Parties
Applicant Deputy for ACC and HPP: Irwin Mitchell Trust Corporation Ltd; Applicant Deputy for JDJ: Kelly Greig; Litigation Friend for Protected Persons: Official Solicitor; Second Respondent: Public Guardian
Jurisdiction
England and Wales
Judgment Date
27 February 2020
Procedural Posture
Property and Affairs Deputyship (court of Protection) / Judgment After Attended Hearing on Joined Applications
Outcome
Applications allowed in part; retrospective authorisation granted for certain costs; guidance issued on deputyship authority and conflicts of interest.
Legal Topics
Deputyship Authority, Legal Costs Recovery, Conflict of Interest, Litigation Friend, Retrospective Authorisation
Mental Capacity Law Court of Protection Property and Affairs Deputyship Authority Legal Costs Recovery Conflict of Interest Litigation Friend Retrospective Authorisation

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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 Protected Persons

Public Guardian

Second Respondent

Procedural Posture

Property and Affairs Deputyship (court of Protection) / Judgment After Attended Hearing on Joined Applications

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
  2. 2 Whether a deputy can instruct their own associated legal firm and recover costs from P
  3. 3 What authorisation is required for deputies to conduct litigation or take legal advice on behalf of P

Ratio Decidendi

A property and affairs deputy’s general authority does not encompass authority to conduct litigation or to pay legal costs for contentious matters from P’s funds without specific court authorisation, except for certain non-contentious tasks ancillary to management of P’s estate. Where a deputy wishes to instruct their own firm, special measures to address conflict of interest are required, including obtaining comparative quotes and, if costs exceed £2,000 + VAT, specific court authority. Retrospective authorisation may be granted in appropriate cases, but is not presumed. Charging for acting as litigation friend is not in P’s best interests where the Official Solicitor is willing to act...

Court Disposition

Applications allowed in part; retrospective authorisation granted for certain costs; guidance issued on deputyship authority and conflicts of interest.

Orders

  • Deputy for ACC authorised to pay legal costs up to £2,500 + VAT for challenge to Education Health and Care Plan, subject to SCCO assessment.
  • Deputy for JDJ authorised to pay legal costs incurred in Education Health and Care Plan proceedings, subject to SCCO assessment.