Catherine Joan Brassington v Knights Professional Services Ltd (Trading as ‘Knights’)
| Jurisdiction | England & Wales |
| Judge | Hodge |
| Judgment Date | 30 June 2023 |
| Neutral Citation | [2023] EWHC 1568 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: BL-2023-MAN-000040 |
[2023] EWHC 1568 (Ch)
HIS HONOUR JUDGE Hodge KC
Sitting as a Judge of the High Court
Case No: BL-2023-MAN-000040
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
IN MANCHESTER
BUSINESS LIST (ChD)
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ
Court of Protection — Deputyship — Whether a professional deputy who engages her solicitors' practice to act in a professional capacity in connection with the deputyship assumes any personal liability for payment of fees, disbursements and expenses — Whether the deputy contracts solely as agent for the protected person — Construction of terms of engagement
The following cases are referred to in the judgment:
Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch)
Wood v Capita Insurance Services Ltd [2017] UKSC 24, [2017] AC 1173
Mr Neil Berragan (instructed by Excello Law Limited, Chester) for the Claimant
Mr Sean Kelly (instructed by Knights, Newcastle-under-Lyme) for the Defendant
Hearing date: 7 June 2023
Judgment circulated: 26 June 2023
Judgment handed down remotely: 30 June 2023
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Hodge KC
Remote hand-down: This judgment was handed down at a remote hearing at 10.00 am on Friday 30 June 2023 by circulation to the parties or their representatives by email and by release to The National Archives.
His Honour Judge Hodge KC:
I: Introduction
This is my considered judgment following the hearing in Manchester, on Wednesday 7 June 2023, of an application by the claimant for summary judgment on a Part 8 claim, issued on 11 April 2023, by Mrs Katie Brassington, a solicitor who, since qualifying in September 2004, has specialised in private client work. This includes Court of Protection ( COP) matters in which Mrs Brassington accepts appointments to act as a professional deputy for persons lacking in mental capacity. The defendant ( Knights) is a company which practises as solicitors, operating from 24 offices, and employing over 1,100 fee earners (of whom only eight are COP deputies). The claimant is represented by Mr Neil Berragan (of counsel) and the defendant by Mr Sean Kelly (also of counsel).
Although the hearing lasted only half a day, at its conclusion I reserved judgment because this application seemed to me to raise issues whose importance extended beyond the immediate parties to this claim. In particular, it involves consideration of the extent to which a person acting as a COP-appointed deputy for a person ( P) who lacks capacity under the Mental Capacity Act 2005 (the MCA) assumes any personal liability for payment of the fees, disbursements and expenses of a solicitors' practice which they have engaged to act in a professional capacity in connection with their deputyship. Although, by chance, I am also authorised to sit as a COP Judge, this application has come before me sitting in my capacity as a Judge of the High Court in the Business and Property Courts in Manchester.
For structural reasons only, this judgment is divided into the following parts (although these are not self-contained, and the contents of any one part have informed other parts):
I: Introduction
II: Background
III: The proceedings
IV: COP deputyships
V: Submissions
VI: Analysis and conclusions
II: Background
Mrs Brassington was a partner in Walker, Smith & Way when that practice was acquired by Slater & Gordon Solicitors and she moved over to that firm. In May 2016, she joined Knights' Chester office from Slater & Gordon, bringing eight deputyship files with her. Mrs Brassington had previously entered into a written contract of employment with Knights on 25 February 2016. This included post-termination restraints. By clause 2.1, it also required Mrs Brassington, during her employment, to “diligently and faithfully devote the whole of [her] working time and attention to such duties as may be reasonably assigned by Knights and perform them to the best of [her] ability”. Although Mrs Brassington's job title was ‘Partner’, and she worked with, and supervised, a team of junior solicitors and paralegals, earning (by the time she left Knights) a gross yearly salary of £110,000, Mrs Brassington's status was in truth that of an employee. Knights is managed by office rather than specialism, and each solicitor reports to a Client Services Director ( CSD) for their particular office. Since 2013 Knights has operated a computerised system for case management, including billing.
A typical, standard-form COP order, dated 6 March 2018, appointing Mrs Brassington to act as P's deputy for property and affairs is to be found at pages 32–3 of the hearing bundle. Paragraph 1 (a) appoints Mrs Brassington, of Knights' Chester office, as P's deputy “to make decisions on behalf of [P] that he is unable to make for himself in relation to his property and affairs, subject to any conditions or restrictions set out in this order”. Paragraph 1 (c) requires the deputy to “apply the principles set out in section 1 of the Mental Capacity Act 2005 (‘the Act’) and have regard to the guidance in the Code of Practice to the Act”. Paragraph 2 (a) “confers general authority on the deputy to take possession or control of the property and affairs of [P] and to exercise the same powers of management and investment, including purchasing, selling and letting property, as he has as beneficial owner, subject to the terms and conditions set out in this order”. Paragraph 2 (e) of the order enables the deputy to execute or sign any necessary deeds or documents for the purpose of giving effect to any decision. Paragraph 4 (headed ‘Costs and expenses’) provides that:
The deputy is entitled to receive fixed costs in relation to this application, and to receive fixed costs for the general management of [P's] affairs. If the deputy would prefer the costs to be assessed, this order is to be treated as authority to the Senior Courts Costs Office to carry out a detailed assessment on the standard basis.
Mr Berragan points out that the term ‘general management’ is not defined in the MCA, nor is it mentioned in the Code of Practice issued under it.
Mr Berragan emphasises that as a professional deputy, Mrs Brassington provides legal and other services for the benefit of P for which her practice is entitled to payment in accordance with the order appointing her as deputy and the applicable COP rules. These services are provided both by Mrs Brassington and by other employees of Knights, which raises interim bills throughout the year. Each year's final bill is issued following assessment by the Senior Courts Costs Office (the SCCO). All payments are made to Knights out of P's assets (typically a damages payment); and Mrs Brassington obtains no personal benefit other than her salary from Knights. The present case arises from Knights' practice of treating any time costs disallowed by the SCCO as ‘work in progress’ ( WIP) rather than writing them off.
When Mrs Brassington moved to Knights, she prepared and signed letters of retainer with Knights. A sample letter, dated 7 June 2016, is at pages 107 to 110 of the hearing bundle. The letter is addressed to Mrs Brassington c/o Knights' Chester office. It is headed (in bold type): ‘ Deputyship for [name of P] (Engagement)’. The letter begins:
Thank you for appointing us to act on your behalf in connection with the Engagement.
This letter, together with the enclosed standard terms and conditions, sets out the basis of our contract with you. The terms of this letter take priority over the standard terms and conditions if they conflict in any respect.
1. SERVICES
1.1 We will provide the following services to you in connection with the Engagement (Services):
(a) acting as professional deputy, with you, for [P].
1.2 The provision of the Services will not include:
(a) tax advice;
(b) advice which does not directly relate to the Engagement;
(c) advice in respect of any jurisdiction other than England and Wales.
1.3 If further advice is requested, or the extent of the Services changes, we will discuss this with you including any amended estimate of fees and any changes to the timescale.
2. YOUR LAWYER/TEAM
2.1 I am a Partner and will be carrying out the work in relation to the Engagement. I will be assisted by Angharad Hird who is a Solicitor and Gail Powell who is a Paralegal.
2.2 Charles Jones, a Partner, will have overall responsibility for the management and supervision of the Engagement and delivery of the Services.
2.3 Other employees of Knights may assist in the provision of the Services as required from time to time.
3. FEES
3.1 Our fees will be calculated on a time spent basis adopting the following hourly rates:
Partner £ 217
Solicitor £ 161
Paralegal £ 118
3.2 We will advise on an appropriate budget for fees, disbursements and expenses and agree timescales as the matter progresses.
3.3 All fees are exclusive of VAT which will be payable in addition.
3.4 Our fees are not contingent upon completion of the Engagement. Please refer to Section 8 of our standard terms and conditions in respect of the fees we will charge if the Engagement becomes abortive.
4. INVOICES
4.1 Invoices will be sent to you monthly unless agreed otherwise.
4.2 All invoices are strictly payable within thirty days of the date of the invoice.
4.3 You remain responsible for payment of our fees, disbursements and expenses even if a third party has agreed to pay our fees, disbursements and expenses on your behalf. If a third party has not paid our fees, disbursements and expenses in accordance with paragraph 4.2 of this letter you agree to settle our...
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