Mental Capacity Case

Brassington v Knights Professional Services Ltd (t/a Knights) (Re Court of Protection - Deputyship)

HHJ Hodge KC (sitting as a Judge of the High Court)


Short note 

In Brassington v Knights Professional Services Ltd (t/a Knights) (Re Court of Protection - Deputyship) [2023] EWHC 1568 (Ch), HHJ Hodge KC (sitting as a Judge of the High Court) had to consider the question of whether a former employee of a solicitors’ firm acting as a professional deputy could be personally liable for costs which had been recorded  on her deputyship files whilst she was employed by that firm but which could not properly be billed to, or recovered from, the protected persons in relation to whom she had been appointed deputy.  

The crux of a detailed judgment answering the question with a resounding ‘no’ is to be found at paragraph 78, at which HHJ Hodge KC identifies that: 

in my judgment, by subscribing to her standard deputyship letter [an entirely standard form of letter expected where deputy is obtaining legal services], Mrs Brassington was, in each case, contracting with Knights solely in her capacity as deputy, and as agent, for and on behalf of P. That seems to me to be the clear meaning and effect of the language of the standard-form letter, construed in the statutory context against which both parties subscribed to it. Both parties understood that P, rather than Mrs Brassington, was Knights' true client, as evidenced by the way the client was identified and referenced in Knights' statements of account and, by inference, its files and other records. That conclusion accords with both the common sense, and the commercial reality, of the retainer, with Knights owing duties in contract, and not only in tort, to P, rather than to Mrs Brassington, who was the person charged with carrying out the work in relation to the deputyship, which was the relevant engagement. After all, the work Knights was being engaged to carried out was for the benefit of P, rather than Mrs Brassington personally. That conclusion also accords with the provisions of s. 19 (6) of the MCA, which treat the deputy as P's agent, and the explanation of its effect at para 8.55 of the Code of Practice. I agree with Mr Kelly that this explanation is only a short, and necessarily, incomplete, rather than a comprehensive statement of the law concerning the personal liability of an agent; and that the terms of any contract signed by the deputy, its nature, and the surrounding circumstances, all have to be scrutinised carefully to determine whether the deputy is thereby assuming any personal liability.

As HHJ Hodge KC observed, he had raised the question of how the standard deputyship letter:  

might be capable of rendering her (and her family co-deputies) liable to Knights for unpaid WIP, representing sums by way of remuneration and expenses that have been disallowed by the SCCO, if (as both parties accept) P is not liable for such sums. I find it difficult to understand how the same words can bear different meanings, and produce different effects, for Mrs Brassington and for P. Counsel have supplied me with no satisfactory answer to this conundrum.

83. Subject to any further argument that might be presented to the court on this aspect of the case, it seems to me that the position can only be reached whereby P is not liable under Mrs Brassington's standard deputyship letter for any remuneration and expenses that have been disallowed on assessment by the SCCO if the terms of that letter are subject to an overarching implied term to that effect. Such a term could only be implied on the grounds either of business efficacy, or of obviousness, on the basis that, without it, the deputy's engagement of Knights would lack all practical or commercial coherence. Even then, there is the obvious problem that a term cannot properly be implied which would contradict an express term of the contract. Such a term would have to be justified by reference to the peculiar position of a COP-appointed deputy, and the constraints imposed by the MCA and ancillary COP and SCCO practice and guidance. The difficulty I entertain about all of this, however, is that identical, or similar, considerations would seem to me to militate in favour of the implication of such a term into any contract of retainer whereby solicitors are engaged to act in connection with a COP deputyship, whether the counter-party is P, a professional deputy, or a family co-deputy, since the constraints operate in precisely the same manner in all such situations. Fortunately, these are matters that call for no final determination as part of this judgment.

In consequence: 

84. […] no lien can be asserted by Knights against Mrs Brassington [in respect of the shortfall in costs], both because she was never Knights' client, and she was never personally liable for any of their costs and expenses. In principle, Knights could have asserted a lien as against any P, had they been liable to Knights for payment of any outstanding fees, disbursements and expenses. However, Mr Kelly accepts that P is not liable for any remuneration and expenses that have been disallowed on assessment by the SCCO; and it is this which constitutes the unbilled WIP.