Case Summary
Court of Protection
The following summary concerns a case heard in the Court of Protection in 2012 involving a claim against a professional deputy's surety bonds. The claim was for losses caused to two of her clients (my parents) and was made by me, in my capacity as Executrix. I represented the estate in person throughout court proceedings and have written this simplified account in the absence of any other published information on claiming against a bond. My purpose is to highlight the difficulties faced by a 'Litigant in Person' and to warn potential claimants of (as yet) unpublicised changes to the terms of this compulsory insurance.
In February 2005 the Court of Protection appointed a solicitor to act as receiver for my parents, both of whom had been diagnosed with Alzheimers and lived with my family in Suffolk. As a fiduciary and member of the Court's Professional Receivers Panel, the solicitor owed them the highest duty of care in law.
At the time the family was in the middle of a financial crisis caused by my father's unwitting default on payment for an annexe (agreed before his diagnosis of dementia). In volunteering for the position, therefore, the receiver (now known as a deputy) was fully aware that there would be some urgent financial issues
to resolve.
However, from the outset she was almost permanently unavailable. As well as having ten Court of Protection clients, she was overseeing a company merger and admitted to being 'under huge pressure of work.' She had declared to the Public Guardianship Office (the Court's administrators) and to the Senior Courts Costs Office, that she was assisted by a lower grade fee earner, but in reality she had no support staff other than her secretary, a non-fee earner. As a result of being over-committed, she neglected my parents' affairs for the duration of her year-long receivership - ignoring all court instructions, reneging on promises and breaching mandatory panel rules. Following months of inaction, in which she had needlessly placed the family at risk of losing our jointly owned home, I asked for her to be replaced. In February 2006 the Court appointed a new receiver, who successfully managed my parents' affairs until their respective deaths in 2007 and 2009.
The Public Guardianship Office (now called the Office of Public Guardian) had guaranteed her fees would be 'tightly controlled' . They also claimed that, on average, a receiver's general management costs were unlikely to exceed £3,000 per year per client. Yet, my parents' receiver had charged them nearly £19,000 plus other costs for her 'services.' I reported suspected financial abuse to the PGO, and subsequently to the OPG and Court itself, but none would look into her Bill of Costs, which had been issued in the name of her practice and assessed in the Senior Courts Costs Office.
Once my parents had died, the solicitor/receiver was no longer in charge of their affairs and I was able to represent their estate in my new capacity as co-Executor. I therefore contacted her practice, querying the identity of a 'Legal Executive' who had featured heavily in the bill. When the practice deceived me over this matter, I applied to have the bill reassessed in the SCCO.
A detailed assessment revealed that the receiver had made numerous false claims (charging for her secretary under the title of Legal Executive) and had breached multiple costs rules. The only financial outcome for my parents during the receivership had been the payment of 13 bills. Over 7 hearings, the bill was reduced by £6,000, but the Costs Judge claimed that, under COP rules, the estate must bear its own costs - even though the practice had failed to comply with a single court order issued during the year-long court proceedings.
All COP clients pay annually for a security bond (now called a surety or deputy bond) to insure them against any financial losses caused by their deputy. During the reassessment process, substantial evidence of negligence by the receiver had come to light, therefore, in November 2011, I applied to the Court of Protection for forfeiture of my parents' bonds. The claim - for c. £22,000 - included £7,000 for the costs of reducing her abusive bill, plus further losses caused through financial mismanagement, her failure to follow court instructions to sell their property and her failure to declare and account for all their moneys.
The receiver was represented in Court by one of her former practices. They hired an extensive legal team, including a leading barrister, who co-edited books on COP law with the Court's senior judge (Denzil Lush). He confirmed that the bonds remained in force, as did the receiver, her practice and two COP judges, (District Judge Ralton and Senior Judge Lush), both of whom proceeded for one year as though the bonds were still in force. Judge Lush ordered me to produce bundles for all the parties and I duly prepared three sets of files, each containing 556 pages of evidence obtained from the receiver's files and from third parties.
During the 4 hour hearing before Judge Lush he did not ask myself or the receiver a single question about the claims. Nor did he refer to any of the evidence, which he had ordered me to produce. Much time was spent listening to a second, junior, barrister, who - bizarrely - had been hired by the legal team to dispute their senior barrister's legal opinion (that the bonds remained in force). She claimed that all bonds issued before the Mental Capacity Act took effect (Oct 2007) were cancelled as soon as the deputy had submitted their final accounts to the Court (c. 2 weeks after ceasing to act for the client). Judge Lush was arguably the country's leading authority on COP rules and had overseen changes to these when the MCA took effect. He had also lectured on the subject of security bonds. Yet, he was unable to clarify the rules on expiry of pre-MCA bonds for the Court.
One month later he issued a judgment, agreeing with everything the junior barrister had said and dismissing all my claims without any explanation as to why they were invalid. He claimed that all pre-MCA bonds were cancelled once a receiver stopped acting for the client - leaving no opportunity for Executors to raise a claim. If true, his ruling meant that my parents' bonds had effectively been cancelled when the receiver was replaced, and I could never have claimed on them.
Judge Lush had apparently 'forgotten' that all bonds (whenever issued) remain in force for some years after the deputy steps down. This had been confirmed in 2009 by HH Judge Hazel Marshall, who stated that 180 bonds had been forfeited since 1988 (when the bond scheme was first introduced) and that '25,600 historic bonds' remained in force. (An historic bond is one which remains enforceable, although the deputy is no longer acting for the client.) Further evidence - suggesting that claims could be made against pre-MCA bonds after the death of the client - is contained in a response to an FOI Request, which confirmed that 46 lay deputies' bonds and 3 professional deputies' bonds were forfeited by the Court between 2003 and 2007. (Since a deputy's files are protected by legal privilege while the client is alive, evidence of negligence, fraud and financial mismanagement is almost impossible to obtain until after the client has died.)
His opinion was at odds with his own co-editor of COP law books, yet despite the legal 'confusion' among so many COP experts over a simple rule, Judge Lush refused to hold a wasted costs hearing to determine whether his co-editor (and others) had misled the Court. Judges have a duty to ensure that all parties are on a 'level playing field' , and to assist Litigants in Person (those representing themselves in court) in clarifying the law. However, instead of apologising for the failure of 5 legal experts - including himself - to confirm the rules on expiry of bonds, he ordered me to personally pay the costs of all the legal professionals involved in the case.
I later discovered that Judge Lush not only had long standing business interests with several members of the receiver's legal team, including both barristers chambers, but had been working on a commercial book with the receiver herself at exactly the same time I had claimed she was neglecting my parents' affairs. He did not declare any of these interests or recuse himself from hearing the case.
His judgment had not addressed any of the claims nor clarified why the bonds do not cover specific losses. He claimed that a clerical officer at the PGO had previously investigated and dismissed all my claims, although nearly all losses had been discovered and/or occurred long after the PGO's involvement with the receiver. He did not explain why a clerical officer was allowed to assume a judicial rule in my parents' case, when this is prohibited in law.
He was unconcerned by moneys which had 'gone missing' from an account of my father's, which the receiver had failed to declare, by the false claims in her Bill of Costs or by her failure to comply with all COP instructions for one year.
When I appealed his decision on several grounds, not the least of which was his 'error' over the status of the bonds, Judge Lush ignored 3 separate court applications. (The Ministry of Justice confirmed that courts must respond to all applications). He moved my appeal to other judges in other courts, contravening appeal procedures, and later, I was advised that all my papers had apparently been 'lost' between two court buildings. He refused permission to appeal on all grounds, without reference to his own mistake over the rules on expiry of bonds or the conflicting legal opinion given by members of the receiver's legal team.
At a subsequent hearing in Chancery Division in 2013, a High Court Judge (Justice Mann) agreed that Judge Lush's interpretation of the rules on expiry of bonds' made no sense.' I was able to produce evidence from the OPG confirming that my parents' bonds had been in force throughout proceedings at the Court of Protection, yet still Justice Mann refused permission to appeal.
At this point the case was closed, without any judge ever having clarified the expiry dates of my parents' bonds or having considered a single page of evidence.
In 2017 Judge Lush retired. His retirement party was hosted at the offices of the receiver's former practice, who had represented her in court.
Although the case is over, Judge Lush's rulings have effectively changed the terms and status of the bond, which no longer covers 'any losses' caused by a deputy. Yet these amendments have never been made public. In particular, his ruling - that the costs of reducing an abusive bill cannot be met through a claim on the bonds - deters anyone from challenging a professional deputy's bill, since the costs of a reassessment are likely to exceed any reduction achieved.
In addition to the bond's 'ineffectiveness' in protecting vulnerable clients against losses caused by their deputy, the Court has reduced the period in which claims can be made from 7 years to 2 years, making it almost impossible for Executors to obtain evidence of negligence and bring a claim within this shortened period. Further difficulties arise from the fact that few judgments concerning claims have ever been published and there is a dearth of case law on the subject. (One case previously published on Bailii and quoted widely in legal circles at the time - in which Judge Lush's opinion appears to contradict that given in my parents' case - has since been withdrawn from publication).
Aside from the clear injustice to my parents, their case highlights the dangers of a 'secret' court, which can flout its own rules and procedures, and can alter the terms of a compulsory commercial product without informing the clients who pay for it.
Following the case, I made repeated requests for transparency in relation to publicising the revised status and terms of the bond, as determined by Judge Lush's rulings. However, nobody - including the Court, the OPG, the Ministry of Justice, the Financial Conduct Authority and the insurance companies involved - was willing to publicise these changes. Secrecy on such a grand scale surely makes this compulsory insurance unique. It is possibly the only insurance in the world where information on exclusions and amendments to its terms and conditions are deliberately withheld from the client - a truly bizarre state of affairs. And the fact that the clients involved are all mentally disabled makes it all the more disturbing.
I have written this summary in the hope that one day the judicial system will wake up to what happened in this case and finally address the injustice not only to my parents, but to the thousands of vulnerable clients who have been affected by the Court's 'secret' rulings.
Antoinette Tricker
For full details of the case, citing evidence, please see: www.litigantinperson.info