The Public Guardian v Andrew Riddle (Nos 1 and 2)



Judge: Senior Judge Hilder

Citation: [2020] EWCOP 41

Summary

Senior Judge Hilder has considered at considerable (necessary) length the ability of a professional deputy who is not a solicitor to charge fees at the solicitors’ rate, as well as making more general observations as to their duties.

In The Public Guardian v Andrew Riddle (No 1) [2020] EWCOP 41,[1] she held (at paragraph 104) that it would be appropriate to exercise the court’s discretion to extend the solicitors’ costs provisions to a non-solicitor deputy where that deputy demonstrates that he/she/it is also subject to professional obligations comparable to those integral to being a solicitor, and where that non-solicitor deputy accepts being held to the same standards as a solicitor.  On the facts of the (several) cases before her, she was not satisfied that Mr Riddle met these two tests.   She acknowledged that Mr Riddle was not alone in calling for a review of the fixed rates under Practice Direction 19B, as the rates have not increased since 2010 and The Professional Deputies Forum argues that rates are now therefore 31% lower in real terms than they were in 2010.  She noted that, as of March 2020, a subcommittee of the Civil Procedure Rules Committee, with the agreement of the Master of the Rolls, was engaged in a review of solicitors’ guidelines rates in civil cases, which have al so not been increased since 2010. She observed at paragraph 107 that:

there is undoubtedly force in the argument that the rates of Practice Direction 19B should be similarly reviewed  However, in my judgment, that does not provide any basis for unilaterally behaving as if the rates are other than as they are. Until there is a review – which, as already set out in The Friendly Trust’s Bulk Application. is beyond the remit of proceedings such as these – I cannot give any weight to this part of Mr. Riddle’s argument. To do so would simply be to subvert the Practice Direction.

Of wider relevance, Senior Judge Hilder observed at paragraph 120 that, so as to ensure ‘absolute clarity’ for the future,

Going forwards, so that there is absolute clarity from the outset, any non-solicitor applicant for deputyship who operates on a basis which involves VAT liability should specifically seek in their deputyship application authority to pass onto the protected person any VAT in respect of deputyship fees at the public authority rate . Specific provision can then be made in the appointment order.

She also confirmed (at paragraph 131) that:

If a deputy acting under the fixed fee regime at the public authority rate wishes to reclaim from the protected person the costs of an Independent Visitor in addition to the fees set out in paragraph 16 of PD 19B, specific authority is required. An Independent Visitor does not provide “specialist services that P would normally have been expected to pay if P had retai ned capacity,” and so any charges incurred do not fall within the ‘disbursements’ permitted by paragraph 20 of the Practice Direction .

At paragraph 134, Senior Judge Hilder  reminded deputies that:

It is obviously important that returns are made to the OPG in a timely fashion. The very purpose of supervision of deputies is to protect the interests of vulnerable persons, so a deputy’s failure to meet its obligations to the supervising body inevitably triggers concern. A deputy cannot fail to meet their obligations and then complain that questions are asked about their management of a protected person’s estate. The onus is on the deputy to demonstrate that he is acting properly, and not on the Public Guardian to enforce compliance. Inadequate staffing resources is not an acceptable reason for failing to comply with reporting obligations but rather itself a cause for legitimate concern. It is part of the obligations of a paid deputy not to take on more appointments than he has resources to manage properly.

On the facts of the cases before her, Senior Judge Hilder made orders refusing Mr. Riddle’s applications for authorisation to charge fees at the solicitors’ rate, refusing his applications for relief from liability for past charges, and giving Mr Riddle a very short further period of time to make good his words and restore each estate to its rightful level.

The subsequent judgment ([2020] EWCOP 41) contained confirmation that Mr Riddle had been good to his word, and that the Public Guardian did not now seek revocation of his appointment in those cases; it also contained specific supervision arrangements for him.   The judgment also confirmed that Senior Judge Hilder had refused Mr Riddle’s application to charge fees at anything other than the public authority rate, emphasising at paragraph 14(a) that “[t]he Court’s determination of fees authorisation must be determined in the best interests of the protected person, not the business interests of the potential deputy,” and that Mr Riddle had not demonstrated that he offered services over and above those which a public authority might be expected to provide.”

As to costs, in the second judgment, Senior Judge Hilder agreed with the Public Guardian that each party should bear their own costs, and rejected Mr Riddle’s claim for the Public Guardian to pay any of his own costs.  Of wider relevance is her observation at paragraph 23 that:

The Public Guardian should not be constrained from bringing complex and multi-faceted cases to the attention of the court by a fear of costs risks. These proceedings were procedurally complicated to manage and administer as the number of cases under consideration grew in a piecemeal fashion, as set out in paragraphs 17 to 27 of the first judgment. That context is an important consideration when determining any allegation by Mr. Riddle that the conduct of the Office of the Public Guardian during these proceedings was not appropriate. Any order for costs against the Public Guardian must be clearly based on demonstrable significant failings. I am not satisfied that there were such failings in this matter.

Comment

The length and fact-specificity of the two judgments are understandable given the complexity of the cases before the court, but the principles derived and extracted above are admirably simple and clear, as well as uncompromising both in relation to the powers of non-solicitor deputies to charge, and as to their obligations as regards the number of cases that they should take on.

[1] Oddly, available via hyperlink from the body of the judgment available on Bailii, and only in PDF.

CategoryDeputies - Financial and property affairs, Deputies Date

Keywords


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