Office of Public Sector Information
150.—(1) This rule applies where a party to proceedings—
(a) for whom a solicitor is acting wants to change his solicitor or act in person; or
(b) after having conducted the proceedings in person, appoints a solicitor to act on his behalf (except where the solicitor is appointed only to act as an advocate for a hearing).
(2) The party proposing the change must—
(a) file a notice of the change with the court; and
(b) serve the notice of the change on every other party to the proceedings and, if there is one, on the solicitor who will cease to act.
(3) The notice must state the party’s address for service.
(4) The notice filed at court must state that it has been served as required by paragraph (2)(b).
(5) Where there is a solicitor who will cease to act, he will continue to be considered the party’s solicitor unless and until—
(a) the notice is filed and served in accordance with paragraphs (2), (3) and (4); or
(b) the court makes an order under rule 152 and the order is served in accordance with that rule.
151.—(1) Where the certificate of any person (“A”) who is an LSC funded client is revoked or discharged—
(a) the solicitor who acted for A will cease to be the solicitor acting in the case as soon as his retainer is determined under regulation 4 of the Community Legal Services (Costs) Regulations 2000(14); and
(b) if A wishes to continue and appoints a solicitor to act on his behalf, rule 150(2), (3) and (4) will apply as if A had previously conducted the application in person.
(2) In this rule, “certificate” means a certificate issued under the Funding Code (approved under section 9 of the Access to Justice Act 1999(15)).
152.—(1) A solicitor may apply for an order declaring that he has ceased to be the solicitor acting for a party.
(2) Where an application is made under this rule—
(a) the solicitor must serve the application notice on the party for whom the solicitor is acting, unless the court directs otherwise; and
(b) the application must be supported by evidence.
(3) Where the court makes an order that a solicitor has ceased to act, the solicitor must—
(a) serve a copy of the order on every other party to the proceedings; and
(b) file a certificate of service.
153.—(1) Where—
(a) a solicitor who has acted for a party—
(i) has died;
(ii) has become bankrupt;
(iii) has ceased to practice; or
(iv) cannot be found; and
(b) the party has not served a notice of a change of solicitor or notice of intention to act in person as required by rule 150,
any other party may apply for an order declaring that the solicitor has ceased to be the solicitor acting for the other party in the case.
(2) Where an application is made under this rule, the applicant must serve the application on the party to whose solicitor the application relates, unless the court directs otherwise.
(3) Where the court makes an order under this rule—
(a) the court will give directions about serving a copy of the order on every other party to the proceedings; and
(b) where the order is served by a party, that party must file a certificate of service.
154. A practice direction may make additional or different provision in relation to change of solicitor.
155.—(1) In this Part—
(a) ‘additional liability’ means the percentage increase, the insurance premium, or the additional amount in respect of provision made by a membership organisation, as the case may be;
(b) ‘authorised court officer’ means any officer of the Supreme Court Costs Office, whom the Lord Chancellor has authorised to assess costs;
(c) ‘costs’ include fees, charges, disbursements, expenses, reimbursement permitted to a litigant in person, any additional liability incurred under a funding arrangement and any fee or reward charged by a lay representative for acting on behalf of a party in proceedings;
(d) ‘costs judge’ means a taxing Master of the Supreme Court;
(e) ‘costs officer’ means a costs judge or an authorised court officer;
(f) ‘detailed assessment’ means the procedure by which the amount of costs or remuneration is decided by a costs officer in accordance with Part 47 of the Civil Procedure Rules 1998 (which are applied to proceedings under these Rules, with modifications, by rule 160);
(g) ‘fixed costs’ are to be construed in accordance with the relevant practice direction;
(h) ‘fund’ includes any estate or property held for the benefit of any person or class of persons and any fund to which a trustee or personal representative is entitled in his capacity as such;
(i) ‘funding arrangement’ means an arrangement where a person has–
(i) entered into a conditional fee agreement or a collective conditional fee agreement which provides for a success fee within the meaning of section 58(2) of the Courts and Legal Services Act 1990(16);
(ii) taken out an insurance policy to which section 29 of the Access to Justice Act 1999 (recovery of insurance premiums by way of costs) applies; or
(iii) made an agreement with a membership organisation to meet his legal costs;
(j) ‘insurance premium’ means a sum of money paid or payable for insurance against the risk of incurring a costs liability in the proceedings, taken out after the event that is the subject matter of the claim;
(k) ‘membership organisation’ means a body prescribed for the purposes of section 30 of the Access to Justice Act 1999 (recovery where body undertakes to meet costs liabilities);
(l) ‘paying party’ means a party liable to pay costs;
(m) ‘percentage increase’ means the percentage by which the amount of a legal representative’s fee can be increased in accordance with a conditional fee agreement which provides for a success fee;
(n) ‘receiving party’ means a party entitled to be paid costs;
(o) ‘summary assessment’ means the procedure by which the court, when making an order about costs, orders payment of a sum of money instead of fixed costs or ‘detailed assessment’.
(2) The costs to which the rules in this Part apply include—
(a) where the costs may be assessed by the court, costs payable by a client to his solicitor; and
(b) costs which are payable by one party to another party under the terms of a contract, where the court makes an order for an assessment of those costs.
(3) Where advocacy or litigation services are provided to a client under a conditional fee agreement, costs are recoverable under this Part notwithstanding that the client is liable to pay his legal representative’s fees and expenses only to the extent that sums are recovered in respect of the proceedings, whether by way of costs or otherwise.
(4) In paragraph (3), the reference to a conditional fee agreement is to an agreement which satisfies all the conditions applicable to it by virtue of section 58 of the Courts and Legal Services Act 1990(17).
156. Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings or of that part of the proceedings that concerns P’s property and affairs, shall be paid by P or charged to his estate.
157. Where the proceedings concern P’s personal welfare the general rule is that there will be no order as to the costs of the proceedings or of that part of the proceedings that concerns P’s personal welfare.
158. Where the proceedings concern both property and affairs and personal welfare the court, insofar as practicable, will apportion the costs as between the respective issues.
159.—(1) The court may depart from rules 156 to 158 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances, including–
(a) the conduct of the parties;
(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(c) the role of any public body involved in the proceedings.
(2) The conduct of the parties includes–
(a) conduct before, as well as during, the proceedings;
(b) whether it was reasonable for a party to raise, pursue or contest a particular issue;
(c) the manner in which a party has made or responded to an application or a particular issue; and
(d) whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response.
(3) Without prejudice to rules 156 to 158 and the foregoing provisions of this rule, the court may permit a party to recover their fixed costs in accordance with the relevant practice direction.
160.—(1) Subject to the provisions of these Rules, Parts 44, 47 and 48 of the Civil Procedure Rules 1998 (“the 1998 Rules”) shall apply with the modifications in this rule and such other modifications as may be appropriate, to costs incurred in relation to proceedings under these Rules as they apply to costs incurred in relation to proceedings in the High Court.
(2) The provisions of Part 47 of the 1998 Rules shall apply with the modifications in this rule and such other modifications as may be appropriate, to a detailed assessment of the remuneration of a deputy under these Rules as they apply to a detailed assessment of costs in proceedings to which the 1998 Rules apply.
(3) Where the definitions in Part 43 (referred to in Parts 44, 47 and 48) of the 1998 Rules are different from the definitions in rule 155 of these Rules, the latter shall prevail.
(4) Rules 44.1, 44.3(1) to (5), 44.6, 44.7, 44.9, 44.10, 44.11. 44.12 and 44.12A of the 1998 Rules do not apply.
(5) In rule 44.17 of the 1998 Rules, the references to Parts 45 and 46 do not apply.
(6) In rule 47.3(1)(c) of the 1998 Rules, the words “unless the costs are being assessed under rule 48.5 (costs where money is payable to a child or a patient)” are removed.
(7) In rule 47.3(2) of the 1998 Rules, the words “or a district judge” are removed.
(8) Rule 47.4(3) and (4) of the 1998 Rules do not apply.
(9) Rules 47.9(4), 47.10 and 47.11 of the 1998 Rules do not apply where the costs are to be paid by P or charged to his estate.
(10) Rules 48.2, 48.3, 48.6A, and 48.10 of the 1998 Rules do not apply.
(11) Rule 48.1(1) of the 1998 Rules is removed and is replaced by the following: “This paragraph applies where a person applies for an order for specific disclosure before the commencement of proceedings”.
161.—(1) Where the court orders costs to be assessed by way of detailed assessment, the detailed assessment proceedings shall take place in the High Court.
(2) A fee is payable in respect of the detailed assessment of costs and on an appeal against a decision made in a detailed assessment of costs.
(3) Where a detailed assessment of costs has taken place, the amount payable by P is the amount which the court certifies as payable.
162. Where two or more persons having the same interest in relation to a matter act in relation to the proceedings by separate legal representatives, they shall not be permitted more than one set of costs of the representation unless and to the extent that the court certifies that the circumstances justify separate representation.
163. Any costs incurred by the Official Solicitor in relation to proceedings under these Rules or in carrying out any directions given by the court and not provided for by remuneration under rule 167 shall be paid by such persons or out of such funds as the court may direct.
164. Where the court orders a party, or P, to pay costs to another party it may either—
(a) make a summary assessment of the costs; or
(b) order a detailed assessment of the costs by a costs officer,
unless any rule, practice direction or other enactment provides otherwise.
165. An order or direction that costs incurred during P’s lifetime be paid out of or charged on his estate may be made within 6 years after P’s death.
166.—(1) Where the court is considering whether to make a costs order in favour of or against a person who is not a party to proceedings—
(a) that person must be added as a party to the proceedings for the purposes of costs only; and
(b) he must be given a reasonable opportunity to attend a hearing at which the court will consider the matter further.
(2) This rule does not apply where the court is considering whether to make an order against the Legal Services Commission.
167.—(1) Where the court orders that a deputy, donee or attorney is entitled to remuneration out of P’s estate for discharging his functions as such, the court may make such order as it thinks fit, including an order that—
(a) he be paid a fixed amount;
(b) he be paid at a specified rate; or
(c) the amount of the remuneration shall be determined in accordance with the schedule of fees set out in the relevant practice direction.
(2) Any amount permitted by the court under paragraph (1) shall constitute a debt due from P’s estate.
(3) The court may order a detailed assessment of the remuneration by a costs officer, in accordance with rule 164(b).
168. A practice direction may make further provision in respect of costs in proceedings.
S.I. 2000/441. Back [14]
Section 58 was substituted by section 27(1) of the Access to Justice Act 1999 (c. 22). Back [17]
The Court of Protection Rules 2007