Deputy's Decision To Litigate - Court Of Protection Warning Against Acting Without Authority

• Published date: 18 November 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Veale Wasbrough Vizards
• Author: Ms Vicky Ward

The Court of Protection (COP) has warned deputies against applying for retrospective authorisation to enter into litigation on behalf of a protected party, and set out useful guidance for practitioners to consider.

This warning came from the leading test case of Re ACC and Others [2020] EWCOP 9.

In the three cases before her, HHJ Hilder, Senior Court of Protection Judge, held that the deputies' decisions to litigate were justified, and so granted retrospective authority to recover the associated costs from the protected parties' funds. However, the judgment comes with a stark warning for property and affairs deputies:

"Nothing in this decision should encourage property and affairs deputies to consider that there will on other occasions be a similarly positive determination of applications effectively to authorise litigation after the event".

In these cases, all concerning the same firm of solicitors, each deputy had instructed their own firm to conduct litigation on their behalf. In one application, the parties sought authority to recover costs from the protected party (P) incurred in connection with the deputy's role as P's litigation friend in relation to civil proceedings. Critically, none of the relevant deputyship orders contained any express provision either granting or excluding authority for the deputy to instruct solicitors or to conduct any kind of proceedings on behalf of P.

The judgment considers in detail the scope of a property and affairs deputy's general authority and the circumstances in which a deputy is expected to secure advance authorisation before taking action. Wider issues were also considered concerning costs and conflicts of interest in situations where a solicitor deputy instructs their own law firm and/or a litigation friend with whom they are associated.

A series of key questions [51-59] were identified by HHJ Hilder as arising from the applications before her. A summary of her conclusions is set out in the appendix to the judgment and contains useful guidance for practitioners, including:

1. The Deputy's General Authority

It was held that the 'general authority' does not include authority to conduct litigation on behalf of P. Ordinary legal tasks which are required to administer P's estate efficiently are included, such as obtaining the necessary legal advice for the preparation of P's tax return, or taking steps and applying funds to ensure P's care fees are met.

2. Authority to Litigate

A deputy's 'general authority'...