In a judgment [2018] EWCOP 22 handed out by Her Honour Judge Hilder on the 24th September, there has been further clarification regarding fees that can be charged by “non solicitors” following the case between London Borough of Enfield and Matrix Deputies Limited.

in the judgement HHJ Hilder sets out five questions regarding remuneration of Deputies:

(1) If an order merely authorises “fixed costs” without specifying at what rate, does that necessarily imply fixed costs at the lower, public authority rate?

(2) If an order authorises “fixed costs” without specifying at what rate but also authorises the deputy to obtain assessment from the SCCO, what is the effect of the second limb of the order? Is it ‘simply otiose’? Does it necessarily imply fixed costs at the higher, solicitors’ rates?

(3) Where a single deputy holds various appointments, some of which include authorisation to charge fees at the higher fixed rate, and some of which authorise merely “fixed costs” without specifying the rate, can that deputy infer that all his appointments are made on the same basis such that where the rate is not specified, the higher rate can be implied?

(4) If an order did not include authorisation to obtain SCCO assessment, but such assessment was obtained anyway, is the deputy entitled to charge the assessed fees?

(5) Where an order does include authority to obtain SCCO assessment, can the deputy rely on that authority once the estate has fallen below £16000, or is the deputy required to seek specific further authority for assessment?

Following discussion and argument HHJ Hilder responded:

(1) Yes, if an order authorises “fixed costs” without specifying at what rate, that necessarily implies the lower, public authority rate.

(2) No, if an order authorises “fixed costs” without specifying at what rate but also authorises the deputy to seek assessment from the SCCO, that does not imply the higher, solicitors’ rate. It is open to the court to provide for fixed costs at the lower rate and also the option of assessment in a particular case if it sees fit.

(3) No, a deputy may not ‘read across’ from the terms of one appointment into the terms of another. Each order stands on its own as a ‘best interests’ decision on the facts of a particular case.

(4) No, an assessment obtained from the SCCO without authority is not sufficient to establish entitlement to claim the assessed fee. At best, the deputy may seek to rely on such assessment in support of an application for release of liability in respect of any fee charged at the assessed rate. Any lack of challenge from the OPG to a report submitted to it by the deputy does not constitute authorisation to charge the reported fee.

(5) Yes, once an estate falls below £16 000, specific authorisation is required to obtain assessment of costs. The deputy may not continue to rely on an authorisation of assessment which was granted when the net value of the estate was greater than £16 000.

This judgment together with the earlier decision of District Judge Eldergill in The Friendly Trust’s Bulk Application [2016] EWCOP 40 seem to clarify how fixed fees should be treated by third party companies i.e. Non Solicitors and Non Local Authorities.

Given the number of third parties now in operation one would assume that this decision will not go unchallenged and that the Court and the OPG need to agree a way forward that recognises the needs of all professional deputies to receive fair remuneration for work undertaken.