STEP, PDF & SFE welcome ruling that court-appointed deputies are not personally liable for a firm’s unrecovered costs
Industry bodies have welcomed a recent judgment that found a solicitor does not have to pay her former firm for alleged losses of revenue while carrying out duties after being appointed by the court to act on behalf of a vulnerable client.
The judgment in Brassington v Knights Professional Services Ltd (t/a Knights) (Re Court of Protection – Deputyship) ruled that Katie Brassington, a former partner at Knights Professional Services, was not personally liable to pay for time recorded on any deputyship file that could not be billed to the client that she was appointed to.
The case is described as a landmark ruling, protecting future court-appointed deputies by ensuring that it does not became standard practice to hold professional deputies personally liable for unrecovered costs.
STEP, the professional body for inheritance advisers, PDF (the Professional Deputies Forum), and SFE (Solicitors for the Elderly) have welcomed the ruling. It’s thought the implications could have been “disastrous” for the current process of appointing solicitors to act in the interest of vulnerable clients. By finding that court-appointed deputies are not personally liable for unrecovered costs in such cases, solicitors can continue to act as professional deputies without such concerns.
Commenting on the ruling, Kelly Greig, STEP Board member, said:
“The overwhelming majority of professional deputies undertake work as court-appointed deputies with a strong ethical commitment to supporting vulnerable clients and their families.
The firms they work for acknowledge this commitment and benefit from the good will and enthusiasm that goes with this area of work, which also brings opportunities to develop other areas of the work.”
Alexander Wright, Chairman of the PDF, said:
“We would be concerned if the practice of holding deputies personally liable for unrecovered costs from undertaking such work became common.
This would pose a material risk to the sustainability of Court of Protection as a practice area, as no solicitor would be able to take on personal liability for a firm’s unrecovered costs.”
Holly Chantler, SFE Board Director, said:
“SFE welcomes the outcome of the case. A determination of personal liability for a professional deputy would have been catastrophic for the sector, putting the sustainability of the profession at risk and in turn, the vulnerable clients we support.
Had the ruling gone the other way, solicitors would not continue to act as professional deputies, placing the Court of Protection practice area at considerable risk and likely bringing an end to the practice area as we know it.”
Context
The case concerns the costs of Katie Brassington, who was appointed to act as deputy in her own name, while working for Knights Professional Services.
As a deputy, her costs were limited to what she was allowed to charge by the Court of Protection, which allows a professional deputy to be paid only costs that are determined by the Senior Courts Costs Office (SSCO).
This ensures that there is independent oversight of costs charged by a solicitor where the client is unable to approve and agree the costs charged. The amount that can be charged is often less than the value of the work, measured by the firm as work in progress (WIP). For example, the SCCO places a limit on hourly rates, which are generally higher for similar work carried out by the same fee earners.
When Brassington left Knights to work for another firm, Knights claimed that as deputy she was liable to pay the difference between the WIP and the assessed costs.
