Penntrust Ltd v West Berkshire District Council
| Jurisdiction | England & Wales |
| Judge | Hilder |
| Judgment Date | 28 September 2020 |
| Neutral Citation | [2020] EWCOP 48 |
| Date | 28 September 2020 |
| Docket Number | CASE NO: 12501237 |
| Court | Court of Protection |
[2020] EWCOP 48
IN THE COURT OF PROTECTION
IN THE MATTER OF AH
First Avenue House
42–49 High Holborn
London, WC1V 6NP
Her Honour Judge Hilder
CASE NO: 12501237
and
Mr. Chandler (instructed by Penningtons Manches LLP) for the Applicant
Ms. van Overdijk (instructed by West Berkshire District Council) for the First Respondent
Ms. Whittington (instructed by The Public Guardian)
Hearing: 19 May 2020
The hearing was conducted in public subject to a transparency order made on 15 th March 2020. The judgment was handed down to the parties by e-mail on 28 th September 2020. It consists of 21 pages, and has been signed and dated by the judge. The numbers in square brackets and bold typeface refer to pages of the hearing bundle.
A. The Issue
Practice Direction 19B provides for fixed costs in the Court of Protection. There is specific provision in the Practice Direction “where the net assets of P are below £16000.” The option for detailed assessment of costs for such estates “will only arise if the court makes a specific order.”
The Applicant trust corporation was formerly appointed as property and affairs deputy for AH. At all times during the deputyship AH's liquid assets were less than £16 000 but her total assets, including a property in which she lives, were substantially higher. The deputyship order includes authorisation to seek SCCO assessment but makes no explicit reference to the size or nature of AH's estate. The Applicant contends that it is entitled to rely on the authorisation in its deputyship order to seek SCCO assessment of its costs. In the event that the Court does not agree, the Applicant seeks retrospective authority to obtain SCCO assessment.
The Respondents take no substantive position on the issue to be determined. West Berkshire District Council is “largely neutral” but, as current deputy, is concerned to understand what debt AH has incurred. The Public Guardian “seeks no specific outcome.” His approach to the matter has simply been to assist the Court where he can.
B. Matters considered
I have read all the documents collated into the hearing bundle and additional documents filed at and after the hearing, including:
a. filed by the Applicant:
statement by Julie Burton dated 3 rd January 2019 [ 15]
statement by Gary Tidmarsh dated 18 th May 2020
skeleton argument by Mr. Chandler, dated 13 th May 2020
b. filed by the First Respondent:
statement by Jo England dated 22 nd March 2019 [ 92]
skeleton argument by Ms. van Overdijk, dated 13 th May 2020
c. filed by the Public Guardian:
skeleton argument by Ms. Whittington, dated 12 th May 2020
I have heard oral submissions from Counsel for each party.
C. The Background
AH is now 93 years old. She was born in Poland but she has lived in the UK since the age of 15. Her husband died in 2003 and her son shortly afterwards but she has two living daughters, M and Z. She lives in her own home at 25 CW, with her grandson, D (who is the son of Z). She has dementia and receives a package of care support which is funded by West Berkshire Council.
In or about 2013, some financial transactions made on AH's account were questioned but AH was unable to recall or explain them. The Local Authority conducted a safeguarding investigation. No definitive conclusion was reached. At the same time, the Local Authority was involved in relation to the package of care provided to AH.
In 2014 West Berkshire District Council commenced proceedings in respect of assessment of AH's capacity. The matter was transferred from the central registry of the Court of Protection to a regional court.
In the course of those proceedings a report was obtained from Dr Hugh Series dated 19 th July 2014 [ 35]. He confirmed that AH lacks capacity to manage her property and affairs, to make decisions about her care management, to decide on contact with family members and to litigate the proceedings.
There was an attended hearing on 27 th August 2014. West Berkshire District Council has filed an attendance note, which includes the following account:
“J[udge] asked what the current position was with P's finances. KB explained that currently [P's grandson] was managing them, but that it had been made clear by P's daughters that this situation was unacceptable to them. As far as they were concerned it needed to be formalised and they wanted it to be either themselves or, in the alternative a panel deputy. Confirmed that the Council's view was that a Panel would be appropriate as it would be independent from the Council and due to the complaints this was preferable, equally it would be independent from each of the family members, and that due to disagreements between the family this would be appropriate. If necessary the Council were prepared to make the relevant application.
J[udge] asked what knowledge there was of the size of the estate. Outlined that there was potentially circa £1k in the bank plus a small income from state pension, benefit allowances and a private pension but that the major asset was the house. Agreed that it was likely to be mortgage free …. Approximate value of the house is assumed to be £230–240k…
J[udge] queried if the Council has considered appointeeship in the interests of keeping control of the costs and time of the proceedings. HW pointed out that the private pension would not be covered…
J[udge] raised the fact that there was apparently no conflict between the sisters…. Queried why there had been no application. KB outlined that they had not indicated any intention to make their own. J[udge] asked what the cost of a panel deputy was, LH indicated that the current level was unknown (£320/annum – as of 02/12). J[udge] agreed that a deputy seemed like a better option that (sic) the OS … but what are other options? KB repeated that we could wait for either side of the family to make an application or we could make one for them.
J[udge] handed down a draft order using the courts powers under 16(6) to make an order without application. J[udge] outlined that the next step was that the London office would find a relevant deputy and appoint them….”
With the usual assistance from staff at the central registry of the Court of Protection, PennTrust Ltd was identified as the appropriate panel member. On 6 th October 2014 [ 25] the hearing judge duly made an order appointing PennTrust Ltd as property and affairs deputy for AH.
Paragraph 4 of the deputyship order provides as follows:
“ the deputy is entitled to receive fixed costs in relation to their application and to receive fixed costs for the general management of the affairs of [AH]. If the deputy would prefer the costs to be assessed, the order is to be treated as authority to the Supreme Courts Costs Office to carry out a detailed assessment on the standard basis.”
Paragraph 5 of the deputyship order required the Deputy to obtain and maintain security in the sum of £150 000.
The deputyship apparently did not run smoothly. Ultimately the Applicant came to the conclusion that there were “ potentially complex issues” [ 20] to deal with, and it would be appropriate for its appointment as deputy to be discharged and the Local Authority to be appointed instead as “ this would ensure that decisions can continue to be made on [AH's] behalf without incurring additional fees which would further deplete her capital.” [ 20]
D. These proceedings
By COP1 application dated 3 rd January 2019 [ 5] PennTrust Limited applied for:
a. its appointment as property and affairs deputy for AH to be discharged;
b. authority to bill costs which had been incurred between 6 th October 2014 and 5 th October 2017 and assessed in the sum of £34 935.95;
c. authority to have costs from 6 th October 2017 to the date of discharge assessed by the SCCO; and
d. authority to secure a charge against 25CW in relation to all outstanding costs.
D filed a COP5 Acknowledgment dated 2 nd February 2019 [ 86] objecting to the appointment of West Berkshire Council as replacement deputy.
By order made on 9 th May 2019 [ 97] the matter was transferred to the regional court for listing of a Dispute Resolution Hearing, which was then arranged for 17 th July 2019.
At the Dispute Resolution Hearing, an order was made [ 108] which recorded that the issues in the case were separated into the “Deputyship Element” and the “Fees Element”:
a. M and Z confirmed that they had no objection to the Deputyship Element, and did not intend to pursue any objection in respect of the Fees Element;
b. D withdrew his objection to the Deputyship Element, and also indicated that he did not intend to pursue an objection in respect of the Fees Element;
c. The appointment of PennTrust Limited as deputy for AH was discharged and (in a separate order [ 111]) the authorised officer of West Berkshire District Council was appointed as replacement deputy.
d. The Council indicated that it had “queries” in relation to the Fees Element;
e. The matter was listed for a final hearing “for the purposes of determining the Fees Element” on the first open date after eight weeks.
By COP9 application dated 5 th November 2019 [ 114] the Local Authority Deputy applied for outstanding issues to be transferred for consideration by me, on the basis that they raise “a broader point of principle concerning the application of Practice Direction 19B and following on from the Matrix case.”
By order made...
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