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Everything you need to know about

Surety Bonds

Compulsory insurance for Court of Protection clients

 


 

The Court of Protection’s bond scheme has been in operation for 28 years, yet the Court has never published any information or guidance on the bonds (formerly known as security bonds).  Few judgments involving claims have been made public, and until recently all related to claims against lay deputies (usually relatives of the court’s vulnerable clients).

In 2012 I became the first Executrix/Litigant in Person to challenge a professional deputy’s bill and claim for forfeiture of her bonds.  The deputy (a solicitor) was a member of the Court’s panel of professional receivers, and as such owed the highest duty of care to her clients.  I claimed for losses caused to my late parents through her failure to carry out basic fiduciary duties and comply with court instructions, and through having seriously overcharged them in her bill.  For the first time the Court was asked to rule upon multiple claims against a professional deputy, none of which had previously been ‘tested’ in law or reported. 

The case was heard by the Court’s senior judge, and although his judgment substantially altered the bond’s terms and conditions, it was withheld from public view for over 2 years.  Following my formal application, it was finally published on Bailii late last year and is now the first judgment of its kind in the history of the Court. However, the Court has yet to inform its clients of the dramatic impact of this case on their insurance.

COP clients are entitled to be kept informed of any amendments to their insurance, and since the Court itself has been unwilling to update clients on these changes, I have compiled some key facts on surety bonds, including determinations by Senior Judge Lush and Mr Justice Mann relating to 7 diverse claims.  All information has been obtained from transcripts of court hearings, judgments, Freedom of Information requests and other authoritative sources, and is based on extensive research and my own experience of making a claim.  Hopefully, it will help to unveil some of the ‘mysteries’ surrounding this arcane product, and demonstrate how the Court of Protection deals with a claim against a professional deputy.

Antoinette Tricker, June, 2016

E&OE

N.B. Following publication of this website, numerous changes have taken place.  I have now updated the site to include all new information, which appears in green at the end of relevant sections. 1st March, 2017

CONTENTS

GENERAL INFORMATION
Purpose of Bond
Bond Providers
Premiums
Definitions
Bonds issued before and after the Mental Capacity Act
How long do bonds remain in force?
Historic Bonds
History of Claims

MAKING A CLAIM

EXAMPLE OF CLAIM
Summary of Case
Challenging the deputy’s Bill of Costs
Claim on Bonds
The Hearing
The Judgment
Error in Law
Rulings on Individual Claims
Deceptions/Fraud    
‘Covering up’
Appeal to Court of Protection
Appeal to Chancery Division
Summary of Case Management
Legal ‘confusion’

LEGACY OF CASE
Summary of ‘Non-claimable’ losses

New ‘condition’

REQUESTS FOR TRANSPARENCY
AVIVA
QUESTIONS
CONCLUSION

GENERAL INFORMATION

 

(Sources of information/evidence cited in red italics)

 

Purpose of Bond

Since 1988 all clients under the Court of Protection’s jurisdiction are obliged to pay for a surety bond.  The bond is ‘sold’ to them on the basis that it guarantees to repay any financial losses caused by their deputy.  The only exception to the requirement for a bond is when a local authority acts as deputy.

 

Bond Providers

In appointing a deputy, the Court of Protection confirms the amount of security required and provides details of Deputy Bond Services, the scheme’s current favoured provider.  (Prior to 2012, the favoured provider was Marsh). DBS act as brokers, who administer the bond for Aviva (formerly Norwich Union).  No other bond providers are listed, although in theory similar bonds can be obtained from other companies.

A Practice Note issued by the OPG in March 2012 says: ‘Providers need to demonstrate to deputies wishing to move outside the scheme that they understand the unique nature of deputy bonds, they meet the requirements of the Regulations, and provide the requisite protection. The OPG has no contract with any provider outside the scheme and does not provide any endorsement or promotion of products offered.’     
OPG Practice Note: Surety Bonds 03/2012    

Update 1: In September 2016 the Office of the Public Guardian issued a new Practice Note relating to Surety Bonds. It advised that, from October, the scheme will be administered by Howden UK Ltd – although deputies may take out a bond with another provider (e.g. Deputy Bond Services). Howden’s website re-confirms that the purpose of the bond is to cover any financial losses arising from the deputy’s failure to perform their duties. It does not quote any exemptions or circumstances under which claims cannot be made. The insurance is underwritten by Tokio Marine HCC.

Update 2: In May 2013 Deputy Bond Services became part of the A.J. Gallagher group – voted as one of the ‘World’s Most Ethical Companies’ by the Ethisphere Institute, the only insurance brokers to be awarded the title.

Premiums

The level of security required depends on various factors, including the status of the deputy and the amount of assets under their control.  (Premiums for lay and professional deputies are the same, but a higher value bond may be ordered for a lay deputy). There is no published information on how the court determines the level of security required in each case. Premiums are paid annually by the client, except in small estates, where it is possible to pay a ‘one-off’ premium to cover the deputyship.

Neither the court nor the Office of the Public Guardian publishes details of Aviva’s annual premiums in England and Wales.  (The OPG supervises deputies appointed by the Court of Protection and if evidence of negligence/malpractice is found, it can apply to the Court to call in the bond.  It has no authority to decide a claim for forfeiture).

However, the OPG in Scotland publishes a list of annual premiums for Aviva Bonds of Caution, the Scottish equivalent of surety bonds.  For example, a bond protecting £200K of assets costs £400 per year, one for £300K costs £600, and one for £400K costs £800.  These figures were correct in July 2015, but are set to rise in 2016.
Incremental premiums for Aviva Bonds of Caution

Update: The annual cost of a bond has been reduced. For the first 3 years Howden charge £150 per year for a bond providing £200K of cover. In years 4 and 5 the premium reduces to £100 p.a.A £400K bond costs £300 for the first 3 years, reducing to £200 p.a. in years 4 and 5. After 5 years, all premiums cease. This is no doubt based on the statistic which says that, on average, bonds remain ‘live’ for 4 and a half years.(See Bailii website, para 41, Judgment dated Oct 2009)

Definitions

Deputy Bond Services confirm the bond is:  an ‘on demand’ guarantee of the performance of a deputy…(to) safeguard the client’s assets and estate from financial losses suffered as a result of the failure of the Deputy to perform the agreed duties’, and:  ‘This is a guarantee by Aviva to pay…any financial losses….arising from the failure of a Deputy to perform their Deputyship duties.                                                                                 
Deputy Bond Services website: 
www.deputybondservices.co.uk
Links:  Online Bond Application/Download Forms/Surety Bond Form                                              


The bond’s terms and conditions do not specify exemptions or circumstances under which claims cannot be made.
Deputy Bond Services:
www.deputybondservices.co.uk                                                                       
Links:  Online Bond Application/Download Forms/Surety Bond Form


A High Court Judge  - Ms Justice Marshall - described the bond as:  'a very powerful protective instrument which operates like a commercial first demand bond, requiring mere certification by the claimant that the conditions for payment have fallen in. The money is paid over almost immediately upon a loss being discovered, and without argument.’  Her description of the product as a ‘first demand bond’  was later reaffirmed by the court’s senior judge, Senior Judge Lush.                                                                                                
Judgment, dated 15 Oct 2009 – Bailii website                                                                                
Conference, 2011


A further definition of a ‘first’ or ‘on-demand’ bond, was provided by ‘In House Lawyer’, who stated that such a bond ‘is characterised by the absence of any conditions required to make a call on the bond other than the making of the call itself….loss, default or breach does not need to be proven.’
In House Lawyer definition, 2014


The OPG states that an application for forfeiture of the bond can be made ‘where the Deputy is in breach of duty.  The Court can call in all or part of the bond up to the limit secured.  There is no requirement to prove fraud and the loss may not be quantifiable.  Neither the OPG nor the Court are party to the bond, which is between the deputy and the bond provider.’                                                                                                                                            
OPG Practice Note: Surety Bonds 03/2012    


In a judgment involving a claim against 2 lay deputies, Mr Justice Hodge claimed:  ‘There is no statutory guidance on the circumstances in which the court should call in a security bond.’   He confirmed the purpose of a bond is to obviate the need for taking costly and protracted civil proceedings against a deputy, and claimed it provides ‘a cheap, quick and simple mechanism to reimburse …the estate  in the event of a deputy’s default.’  (Default is defined as ‘a failure to fulfil a task or obligation’).
Judgment dated April 2014 – Bailii website


In the same judgment, he wrote: ‘the appropriate course the Court of Protection should take in cases of default by a deputy is to call in the security bond almost as a matter of course.  The bond scheme offers an alternative to… bringing an action against a defaulting deputy…’ and ‘provides an immediate and straightforward mechanism, by which the court can ensure that an incapacitated person is compensated for losses that have been incurred through the default of his deputy.’                                                                      
Judgment dated April 2014 – Bailii website


A National Audit Office Report into the Public Guardianship Office (the OPG’s predecessor and former administrators for the Court of Protection), described the bond as follows:  An insurance against the (deputy) losing the client’s money, either through mismanagement or abuse.  To provide financial cover should (their) actions lead to financial loss for the client.’                                                                                                          
NAO Report, dated June 2005


The Report defined abuse as:  the intentional or opportunistic appropriation of the income or property of a vulnerable person through theft, fraud, deception, undue influence or exploitation.’                                                                                                                                         
NAO Report, dated June 2005


The sole purpose of the bond is to protect the client.  It provides no protection for the deputy.   In describing expectations for the bond, the OPG states that ‘these… provide assurance that the protection is robust and continuous throughout the deputyship.‘
OPG Practice Note: Surety Bonds 03/2012 (Point 5)  

Update: The fundamental definition and terms and conditions of a surety bond remain unchanged, viz. it is an ‘on demand’ bond, guaranteeing to pay any identified losses caused by the deputy. Confusingly, however, it is known by 3 different names - security bond, surety bond and deputy bond. In their latest Practice Note, the OPG continue to refer to surety bonds, but elsewhere (including the GOV.UK website) the bonds are still referred to by their original name (security bond).

Bonds issued before and after the MCA

There are some basic differences between the regimes in place - and between bonds issued - before and after the Mental Capacity Act (effective 1st October 2007). These are as follows:

 

Prior to the MCA, deputies were known as receivers.

Prior to the MCA, surety bonds were known as security bonds.

Prior to the MCA, security was given to the Court.

After the MCA, security was given to the Public Guardian.

Prior to the MCA, the Public Guardianship Office acted as administrators for the court.

After the MCA, a new office was created - the Office of the Public Guardian. (The OPG has no administrative role.  This is now carried out by Her Majesty’s Courts & Tribunals Service)

Prior to the MCA, the phrase ‘discharge security’ meant no further coverage was required under the bond, although it remained in force to allow for a claim.

After the MCA, discharge security’ was used to denote cancellation of the bond.                 

Rules in place before the MCA  - Part VII of the Mental Health Act 1983 and Court of Protection Rules 2001 - were both repealed under new rules introduced when the MCA took effect, viz. the Court of Protection Rules 2007 and the Lasting Powers of Attorney, Enduring Powers of Attorney & Public Guardian Regulations 2007, Reg. 37

In the absence of any transitional provisions, all bonds in place when the MCA took effect became subject to the new rules.
Copies of pre- and post MCA bonds                                                                                                        
OPG Practice Note: Surety Bonds 3/2012


Aside from these differences, pre- and post-MCA bonds are similar 2-page documents containing a simple guarantee, viz. to reimburse any losses caused by the deputy’s failure to carry out their duties.
Copies of pre- and post MCA bonds


Pre-MCA bonds say:
  ‘(The bond) will pay to the Court should I fail to carry out the duties stated below the amount of the loss suffered by the Patient’s…estate.

2. The duties of the receivership…are as follows:

b. To account for the Patient’s personal estate and the profits and income thereof.

c. To observe and perform all Orders and Directions of the Court.

h. Claim any entitlements and benefits to which P is entitled.

4. If I fail to carry out any of the duties of the receivership…the Surety Company  will be liable to pay to the Court the sum stated.’
Extract from pre-MCA bond


Post-MCA bonds say:
  The Surety Company…agrees the security…in respect of any failure to carry out the duties of the Deputyship committed after the date hereof…

Terms

The surety Company…guarantees it will pay…to P, or the Personal Representatives of P, the amount of the loss…should the deputies fail to carry out their Deputyship duties.

3. Deputies will carry out their…duties given…in their Deputy’s declaration together with such duties…as specified in any Court Order.’                                                                                                                              
Extract from post-MCA bond

 

How long do bonds remain in force?

Bonds issued prior to the Mental Capacity Act remained in force indefinitely after the client’s death and/or after the deputy ceased acting for the client - to allow for a claim.   Eventually, they were lapsed via computer listings sent to the bond provider by the PGO.        
Evidence provided by Deputy Bond Services, Marsh


When the MCA took effect (1st Oct 2007), new rules covering bonds came into place.   These stated:

(2) The security may be discharged if the court makes an order discharging it.

(3) In any other case, the security may not be discharged until the end of the period of 7 years commencing with whichever of the following dates first occurs—

(a) if the person on whose behalf S (the deputy) was appointed to act dies, the date of his death;

(b) if S (the deputy) dies, the date of his death;

(d) the date when S (the deputy) otherwise ceases to be under a duty to discharge the   functions in respect of which he was ordered to give security.

(4) For the purposes of paragraph (3), if a person takes any step with a view to discharging the security before the end of the period specified in that paragraph, the security is to be treated for all purposes as if it were still in place.                                               
The Lasting Powers of Attorney, Enduring Powers of Attorney & Public Guardian Regulations 2007, Reg. 37


In May 2010 the period of 7 years was reduced to 2 years.                                                                                                                                                 
The Lasting Powers of Attorney, Enduring Powers of Attorney & Public Guardian (Amendment) Regulations 2010, Reg. 37


In 2013 a mass cancellation of pre-MCA bonds was undertaken by the Court and OPG.
Evidence provided by Deputy Bond Services, Marsh  


In rare circumstances, following a formal application, a bond can be cancelled prematurely by Court Order.
Evidence provided by Deputy Bond Services, Marsh

Update: There is no change to the duration of the bond. The client’s personal/legal representatives still have only 2 years in which to make a claim, following the death of the client.

Historic Bonds

After the client dies/deputy ceases to act, the bond is termed 'historic.'  Although still enforceable, annual premiums are no longer payable.
Information provided by Deputy Bond Services, Marsh 


Historic bonds in place when the MCA took effect were deemed to have been taken out under the new rules. They remained in force for 7 years following the death of the client and/or when the deputy ceased acting.                                                                                                                   
The Lasting Powers of Attorney, Enduring Powers of Attorney & Public Guardian Regulations 2007, Reg. 37


The 2 main bond providers, Marsh and Deputy Bond Services provided the following information on historic bonds:

Historic bonds are those that remain claimable against by the Court, but where we have been notified that the deputyship has come to an end.  There are several reasons for this, but mainly the death of the patient.

Bonds in history at October 2007 are those bonds where we had been advised, usually by the deputy…that the deputyship had come to an end and where we awaited formal permission to cancel our records.’                                                                                                  
Marsh, 25.7.13

 


‘Premiums cease to be payable as soon as the Receivership came to an end.  Prior to the MCA there was no time limit stated and it was generally ‘until discharged by the Court of Protection.  So, it could be many years that the bond would remain in force…there is a block discharge of bonds being cleared by the Court and the OPG at the present time…and bonds prior to the MCA would fall into this category if no longer required.   Aviva have to carry the risk until discharge…If the bond remains in force, even if no premiums have been payable for some time, the bond can be called in.’                                                                              
Deputy Bond Services, 24.7.13


At any one time, there are in excess of 50,000 bonds in force.  Some will be ‘live’ where the deputy still acts, while others are ‘historic’, where the client has died and/or the deputy no longer acts.  A judgment issued in 2009 quoted the following: ‘In May 2009 there were some 21,300 ‘live’ bonds in place, and a further 25,600 historic bonds not yet discharged.’ 
Judgment dated 15 Oct 2009 – Bailii website


The same judgment confirmed:  ‘Roughly 6,000 bonds per year are issued, and on average they remain live for 4 and a half years.  Approximately 27% of all bonds are provided to professional deputies. There are some 1900 solicitor appointments, from about 800 firms. The largest such firm…had taken out 529 bonds in May 2009.
Judgment dated 15 Oct 2009 – Bailii website


One year later, the Court of Protection’s senior judge confirmed that the number of bonds issued had risen substantially.  He wrote: Roughly 8,500 bonds are issued a year…In October 2010 there were 26,778 ‘live’ bonds in place, and a further 32,402 historic bonds which had not yet been discharged. The average annual premium is £197.’   Therefore, in one year, clients paid more than £5.25 million for this insurance.
Conference, 2011

 

History of Claims

The judgment of Oct 2009 contained the following information:  The default level since 1988 has been only 180 bonds.  Of all the defaults, only 3 have been in estates managed by a solicitor.’  (Nearly all professional deputies are solicitors).  The Judgments in all 3 cases were withheld by the court.
Judgment dated 15 Oct 2009 – Bailii website


The response to a Freedom of Information Request revealed that the above 3 bonds were all forfeited between 2002 and 2007.  This means that, in the 14 years between 1988 and 2002, no professional deputies’ bonds were forfeited.                                         
Response to FOI request, April 2013.


A further response confirmed that a fourth professional deputy’s bonds were forfeited in 2010.   This judgment too was withheld by the court.
Response to FOI request, 20.2.13


According to judgments published on Bailii, it would appear no further professional deputies’ bonds have been forfeited since 2010. 
Judgments on Bailii – 2010 onwards

The above evidence shows that:

The bonds of only 4 professional deputies have been forfeited by the Court in 28 years.
Judgment dated 15 Oct 2009 – Bailii website                                                                               
Responses to FOI requests, February and April 2013


Following a further FOI request, the Ministry of Justice confirmed that: 

The bonds of 78 lay deputies were forfeited by the Court in just 9 years (between 2003 and 2012).
Response to FOI request, 1.5.13

 


Some of the above 78 lay deputies will have been included in the Oct 2009 judgment, which confirmed that 177 lay deputies’ bonds had been forfeited since 1988.   Based on an average figure of 8 per year, a fair estimate is that, up until the end of 2015, roughly 216 lay deputies’ bonds have been forfeited in 28 years– in contrast to only 4 professional deputies’ bonds.

Despite the large number of lay deputies’ bonds forfeited, few judgments in these cases have been reported, leaving the public and legal practitioners ill-informed over past rulings and the circumstances under which successful claims were made.   Given the unlikely scenario that all claims were identical, it is unclear why the Court withheld so many judgments.  This shortage of reported cases has created a ‘void’, in which an entire area of Court of Protection practice has been kept hidden from the public and those representing the Court’s 30,000 or so clients.

I made a further Freedom of Information Request in May 2015, asking:  How many surety bonds taken out by professional deputies were forfeited by the Court of Protection between 2011 and March 2015?  I asked the same question, of lay deputies.  This time, both requests were refused.  The response read:  I acknowledge that in previous responses, we were able to contact the bond providers directly and ask them for the information on your behalf.  However, they now invoke their right…to not disclose this information on the basis that it can be considered commercially sensitive.‘
Response to FOI request, May 2015


The fact that only 4 professional deputies’ bonds have been forfeited by the court in 28 years is not credible, given that solicitors are no more honest than the rest of society.  For example, between 2010 and 2014, 360 were struck off the Roll, and over 850 were suspended, fined or reprimanded.                                                                                                
Solicitors Disciplinary Tribunal Reports 2010 – 2014


In an examination of 48 case files where potential abuse had come to the attention of the Court/PGO in 2005, 12% of cases involved professional receivers, 27% concerned lay deputies and the remainder related to those with no authority to act for a vulnerable client.   Yet the figure of 12% is not reflected in the figures for forfeiture of professional deputies’ bonds.                                                
National Audit Office Report into PGO, June 2005                                                      


No Court of Protection judgments appear on Bailii between the years 2001 and 2008, and there are none prior to 2000.  The Court also claims to ‘keep no record of appeals.’   HMCTS confirmed: ‘
The court has confirmed they do not retain a list of cases.  Live cases are filed alphabetically and concluded cases are archived in order of age of case without a separate log.  Case files prior to the MCA have been destroyed.’  This would suggest there is no record of Court of Protection case law prior to October 2007 and that all files, if not judgments, have been destroyed.  This is at odds with other courts, who rely on past judgments to inform the judiciary, legal professionals and the public, on how the law has previously been interpreted and applied.                                                                                                                                                 
Response to FOI request, August 2013

 


It is also at odds with Judge Lush’s own support for the retention of pre-MCA case law
.  In April 2013 he said:  ‘The court has a continuous history going back to the thirteenth century, and over the course of 750 years it has acquired considerable experience of managing the affairs of persons who lack capacity.  Respectfully, I must disagree with those who have suggested that any authorities predating the Mental Capacity Act are best consigned to history.’
BHW Solicitors report, May 2013                                                                                                      
Bailii website


Judge Lush has confirmed that, in the 5 years between 2006 and 2010, the total amount paid out by Aviva under the bond scheme was £790,000.  Aviva are entitled to reclaim all moneys paid out, by taking legal action against the defaulting deputies.  Therefore, on average, Aviva and its brokers receive around £5.25 million each year and pay out around £158,000, all of which can be reclaimed.
Conference Notes, 2011

Update: The court has published no further judgments concerning surety bonds.

MAKING A CLAIM

Claiming against a bond is also referred to as claiming for forfeiture, or ‘calling in’ a bond.  Surety bonds are also still frequently referred to as security bonds (their former name) - even in recent judgments.

Only the Court of Protection can order forfeiture of a bond.  Claims can be initiated by the OPG, or by the client’s personal representatives after they have died.  (Following the death of a client, the OPG has no further jurisdiction over their affairs).  There is no case law to show whether a replacement deputy has ever claimed for forfeiture of a former deputy’s bond.   

Professional deputies’ files are protected by legal privilege, making it almost impossible for relatives to obtain evidence for a claim while the client is still alive. (Nobody has automatic access to a deputy’s files, not even the OPG, whose role it is to supervise deputies). 

Bonds issued after May 2010 give Executors only 2 years in which to raise a claim.  This reduced time period severely limits the chances of obtaining evidence for a claim.
OPG Practice Note: Surety Bonds, 03/12


Currently, the court takes around 21 weeks to respond to an application.  It may issue a response without a hearing, in which case the claimant is entitled to request a re-consideration.  (A re-consideration is not an appeal: it is effectively a new ‘look’ at a case, in which all evidence is considered afresh).  An application for a re-consideration is likely to result in a further 5 month delay before the Court can offer a hearing date.  If one factors in the time it takes to prepare and submit a claim, this process alone can take the best part of a year.                                                            
Definition of a ‘re-consideration’, Para 18. Judgment Oct 2009 – Bailii website  


If Executors aim to challenge a professional deputy’s bill (known as a Bill of Costs), this too can be a long, drawn-out process, particularly if the deputy prevaricates and/or withholds information.  In my parents’ case, proceedings took exactly 2 years.  (A deputy can elect to take annual Fixed Costs for managing a client’s affairs, or, if the Court agrees, their bills can be assessed in the Senior Courts Costs Office, where any subsequent challenge - known as a ‘detailed assessment’ – will also be carried out).                                    
Practice Directions B:  Fixed Costs in the Court of Protection. 


Obtaining evidence for a reassessment depends largely on the deputy’s level of co-operation. Executors do not have an automatic right to view the client’s files, therefore unless there has been a total default and/or obvious misappropriation of funds, low level abuse/overcharging is likely to remain undiscovered.   A negligent deputy is also unlikely to provide evidence of their own abuse or negligence, and without firm evidence of this, it is virtually impossible for Executors to acquire sufficient evidence to challenge a bill or to claim against a bond. 

A claim against a bond involves submitting a formal application (on form COP9) to the Court of Protection.  Forms and guidance can be downloaded on the ‘Gov.UK:  Court of Protection’ website.  The site gives some information on the Court’s duties, although it makes no reference to surety bonds.   If the client has died, no fee is payable.                  

Hiring a legal professional to represent the estate can prove costly, therefore you may choose to do this yourself.  If so, you are known as a Litigant in Person.
www.gov.uk/courts-tribunals/court-of-protection

 

EXAMPLE OF CLAIM

 

Summary of Case

In the absence of any published information or guidance on the bonds, and given the dearth of judgments involving claims, I refer to my own claim in 2012, for losses caused to my late parents by the panel deputy appointed to manage their affairs.

In summary, the deputy (who acted for one year only, between Feb 2005 and Feb 2006) failed to act in my parents’ best interests.  During a serious financial crisis, she was rarely available and failed to take action to protect their interests in our (jointly owned) property – knowing that we faced repossession.  For one year she ignored all court instructions, failed to carry out basic fiduciary duties, did not comply with mandatory panel deputy rules and failed to account for all their moneys.  (Because of their dementia, my parents had unwittingly defaulted on payment towards the annexe we had built for them, causing us to go into debt on their behalf).

 

Challenging the deputy’s Bill of Costs

In addition, the deputy had seriously overcharged my parents. Her bill (for 10 months’ ‘work’) came to nearly £19,000 (plus c. £1000 in disbursements and £470 in Fixed Costs).  She had carried out no legal work, and the only financial outcome for my parents was the payment of 13 bills.   On reassessment at the SCCO, it was discovered she had charged for secretaries while calling them ‘Legal Executives', and had breached innumerable costs rules.  Of the original 116 items in her bill, 71 were deleted or reduced, and the bill was eventually reduced by £6,000 (30%).  However, the Costs Judge claimed he was unable to award costs to the estate in a Court of Protection assessment.  It therefore appeared that the only means of recovering these costs (estimated at c. £7000) was through a claim on the bonds.
Transcript of SCCO hearing, Jan 2011                                                                                                      
Amended Bill of Costs


During the proceedings I had requested copies of documents from the deputy’s files, but her practice refused.  It was only when the Information Commissioner intervened that some papers were finally released to me, in November 2011.   Since these contained firm evidence of negligence, I immediately applied to the Court of Protection for forfeiture of my parents’ bonds.  

 

Claim on Bonds

Prior to submitting my claim, I had checked that both bonds were still in force.   Marsh (bond provider) confirmed they had not been cancelled by the court, and that under the rules, they would remain in force for 7 years after the deputy had stepped down.
Letter from Marsh


The deputy and her practice confirmed the bonds were in force, as did their barrister, a leading Counsel in COP practice, who co-edited books with Senior Judge Lush on COP law.  He wrote:

‘The security given in this case was security given to the PGO…under the provisions under Rule 56 of the Court of Protection Rules 2001.  The security bonds remained in place as the point when the MCA 2005 came into force on 1.10.07 and both Part VII of the MHA 1983 and the Court of Protection Rules 2001 were repealed.  The security bonds remain in force.

All confirmed the bonds would remain in force for 7 years.
Position Statement on behalf of deputy/her practice, March 2012


My application named both the deputy and her practice as Respondents.  (As an employee, she had submitted her bill in the name of the practice and all moneys had been paid to them).                                                                                                  
Application to Court of Protection, Nov 2011


I claimed for the following losses:

  1. Losses/costs incurred in challenging the deputy’s financially abusive bill.
  1. Loss of interest on moneys (£6,000) held inappropriately by her practice for 3 years.
  1. Refund of Fixed Costs, disallowed by the SCCO.*
  1. Costs of raising complaints about the deputy’s Bill of Costs/conduct for 4 years.
  1. Inappropriate charges for making malicious statements to third parties.*
  1. Losses caused through mismanagement of my parents’ affairs, including:

- Losses caused by her failure to comply with court instructions for 1 year.
- Losses caused by her failure to comply with mandatory rules.
-
Interest lost on Pension Credit, which the deputy failed to claim for my mother.

  1. Unquantified losses, caused by her failure to declare 4 accounts in my parents’ Annual Accounts, and to account for moneys withdrawn from these. 

(The total amount claimed amounted to just under £22,000, plus additional unquantified losses). 

*These further ‘abuses’  in her Bill of Costs only came to light in Nov 2011, after the  reassessment process had finished.

In May I received an Order from District Judge Ralton.  He dismissed the entire claim without a hearing on the grounds that my parents had died some time ago, there were remedies in other courts (i.e. I could a claim for negligence in the civil courts), the OPG had provided no evidence to support my claims and I had previously litigated the same matters in other courts.  He stressed that ‘the only respondent’ in the case was the deputy herself.
Court Order, May 2012                                                                                                            


He appeared unaware that the OPG’s jurisdiction ends once a client has died, and that no court had previously considered any of my claims.   He did not refer to any of my evidence and did not address any of the claims individually.                                         
Court Order, May 2012


Only one court – the SCCO – had been involved in the case to date.  The Costs Judge had declared he would not be addressing any ‘false statements’ made in the deputy’s bill, or the ‘serious issues’ he had identified during the proceedings.  Furthermore, he  had not penalised the deputy and her practice for their 100% non-compliance with all Court Orders and directions issued during SCCO proceedings, or for their deceptions involving the  Legal Executive.’

He had said:  ‘(the deputy) is just fielding off problems that have been encountered because she didn’t get on with stuff’, and criticised the practice, saying:  ‘There’s a history of non-compliance by your firm and attempts to just delay and obfuscate…and request after request for adjournments…You’ve ambushed Mrs Tricker…this sort of conduct went out 10 years ago.’    However, when it came to awarding costs to the estate, he said:  You can make an application for your costs, but what good is it going to do you, because all that will happen is that I will order those costs to be paid out of the estate?’  His emphatic statement appeared to confirm the SCCO has no remit to award costs in a Court of Protection assessment.
Transcripts of SCCO hearings, Dec 2010 and Jan 2011                                                            
History of Non-Compliance, p.223-226 of Bundles for COP hearing, Dec 2012


I applied for a re-consideration of his Order.  This time the matter came before Senior Judge Lush, who ordered me to produce bundles for all the parties and attend a hearing in December 2012.  The bundles comprised 700 pages, and included 556 pages of evidence obtained from the deputy’s files and other third party sources.  The deputy’s legal team submitted no evidence to disprove my claims.  Their only submissions related to the ‘complaint history’ and a past report by Solicitors for the Elderly, who had looked into some of my early complaints when the practice had refused to do so. 

Judge Lush disagreed with Judge Ralton.  In his Order he cited both the deputy and her practice as Respondents.  I was not offered a ‘regional’ hearing closer to my home and the deputy’s practice.                                                                                                   
Court Order, July 2012                                                                                                               
Bundles for COP hearing, Dec 2012

 

The Hearing

A few days before the hearing I received a ‘Skeleton Argument’ submitted by a second barrister.  This new (junior) barrister had been hired by the deputy to contradict all previous legal opinion on the status of the bonds, including – bizarrely - that of the deputy herself and the more experienced senior barrister.   She claimed that all bonds issued prior to the MCA were cancelled as soon as the Deputy’s Final Accounts had been passed by the court, which on average took around 2 weeks.  During the hearing I contested her view, but although Judge Lush is, arguably, the country’s leading authority on COP law, he was unable to clarify the rules on expiry of pre-MCA bonds for the court.   Much time was devoted to this (apparently) ‘complex’ matter, which could have been decided in a matter of minutes, had, say, he made a call to the bond providers during a break in the hearing.

Over 4 hours, he did not ask myself or the deputy a single question about my claims, or refer to any of the substantial evidence.    Most of the hearing took the form of a ‘dialogue’ between the junior barrister and himself.  I was asked to ‘put up my hand’ if I wanted to intervene.
Transcript of hearing, Dec 2012                                                                                                          
Skeleton Argument, second barrister


Despite his apparent disinterest, I raised the issue of my parents’ undeclared accounts and other matters, and directed him to relevant evidence in the bundles.  I also directed him to the transcript of the SCCO hearing, in which the Costs Judge had confirmed he would not be addressing any of the ‘serious issues’ identified during the reassessment and was unable to award costs to the estate.                                                                                                                 
Transcript of COP hearing, Dec 2012                                                                                        
Transcript of SCCO hearing, Jan 2011                                                                                              
Bundles for COP hearing, Dec 2012                                                                                             

 

The Judgment

In January 2013 Judge Lush issued his judgment.  Curiously, he agreed with the junior barrister – that all bonds issued before the MCA were cancelled shortly after the deputy ceased acting for a client, leaving Executors no opportunity to claim.  This contradicted the legal opinion of the first barrister, his co-editor of books on Court of Protection law.  He claimed that, because the bonds should have been cancelled in 2006, they were no longer enforceable.   His judgment quoted all submissions and arguments by the deputy’s team.  All my own submissions, arguments and evidence were ignored.                                                                                  
Judgment, Jan 2013 – Bailii website


He added that, even if the bonds had been in force, he would have dismissed all my claims.  His ‘reasons’ were condensed into one sentence (para 57).   He implied there was no need for him to consider the claims because 6 years ago I had complained about 3 of the same issues to the PGO when acting as my parents’ carer.  In law, clerical officers have never had authority to decide contentious claims, therefore I had assumed I was entitled to bring a formal claim for forfeiture in my new capacity as Executrix.
Paras 20, 57, 63, Judgment, January 2013 – Bailii website                                                                               


My complaint (in Dec 2005) had focussed on 3 of my present claims, but had been made without the benefit of any evidence or authority to bring a claim to court.  However, evidence submitted in 2012 had contained letters from Alan Eccles (Public Guardian) and other OPG staff confirming that the PGO had not carried out a formal investigation into my claims, compiled a report, inspected the deputy’s files or requested a judicial decision.  Judge Lush ignored all this evidence, and effectively ruled that clerical officers could decide a claim against the bonds.

In para 20 of his judgment, he quoted from a letter written (on 8 Feb 2006) by a PGO clerical officer in response to my formal complaint of December 2005.   She had written:  ‘…the court is satisfied that it is not appropriate to authorise the calling in of the bond.’

This letter constitutes the only ‘investigation’ into my claim for forfeiture, and is the so-called ‘report’ by the PGO, upon which the judgment relies. Despite the significance attached to this report in his judgment, Judge Lush did not quote any of its findings.  Instead, he chose to quote in full a largely irrelevant report by Solicitors for the Elderly, a self-serving organisation of which he was Patron.

 

The PGO’s letter referred to a report from the deputy, exonerating herself, and merely confirmed that the new deputy ‘will deal urgently’ with completing the court’s instructions to market my parents’ property and prepare a Declaration of Trust.  It also acknowledged that ‘there have been some delays in taking certain actions’.  However, neither response addressed the deputy’s failures and losses to my parents – they simply ‘glossed over’ my 2 main claims.

My claim regarding Pension Credit was not addressed in this letter, and the only other matter referred to, concerned the completion of a Carer’s Allowance application form, which the deputy had refused to sign for us, despite knowing that we cared for my mother ‘around the clock’ and were in desperate need of funds at the time.  (The deputy had claimed that, to sign the form, would ‘place an impossible burden’ on her).  The clerical officer confirmed that the PGO itself had now signed the form, but she did not comment on the deputy’s unacceptable conduct  in refusing to sign it herself.

The letter finished, as per para 20 in the judgment, stating that ‘the Court was satisfied that it was not appropriate to authorise the calling in of the bond.

Aside from its sketchy and somewhat ‘biased’ nature (the deputy’s report had itself ignored my main complaints), the clerical officer’s letter contained a major deception.  Papers eventually released from the deputy’s files contained evidence that the clerical officer had never put my claims before the Court. This evidence was before Judge Lush and was raised by me during the hearing, but his judgment ignored it.  He also ignored evidence showing that the same clerical officer had deceived me over the deputy’s failure to claim Pension Credit - claiming she had ‘dealt with’ Pension Credit, when she had not. 

His judgment was therefore based on an erroneous interpretation of the law governing the bonds, and a deception by the PGO.  His claim, that the PGO had investigated my complaints and ‘directed itself properly as to the law’ was simply not true.  There had been no investigation, no presentation of the matter to court, and no consideration of the law.   If the PGO’s ‘report’ had been so professional and thorough, why did he not quote from it, in his judgment?
Paras 46-47, 57, 63, Judgment, January 2013 – Bailii website                                         
Para 20 – PGO ‘investigation’ by clerical officer                                            
Evidence in bundles re. PGO’s deceptions, vindication of my complaints
               
Letter from clerical officer, 10 July 2006                                                                                    
Deputy’s Attendance note, 11 July 2006                                                                                             


Oddly, the junior barrister had made the same ‘mistake.’  In her Skeleton Argument she claimed that, since the PGO and Solicitors for the Elderly had dismissed my complaints in the past, the court should not investigate these, as ‘a determination has already been made.’  Both she and Judge Lush had failed to notice that Solicitors for the Elderly had upheld my claim about the deputy’s failure to present an urgent matter to the Court.    Both too believed that clerical officers possessed statutory powers to decide a claim for forfeiture.   (Both were in possession of evidence showing there had been no judicial involvement in deciding my claims, and in para 63 of his judgment, Judge Lush studiously avoided claiming there had been a judicial determination in this case).                                                                                                                
Paras 20, 57, 63, Judgment, January 2013 – Bailii website                                                                    
Paras 12, 13, 23, 31, Junior Barrister’s Skeleton Argument


The junior barrister also claimed (along with the first barrister) that the OPG was the appropriate authority to investigate my claim for forfeiture.  Both were apparently unaware that the OPG’s jurisdiction ceases upon the death of a client. She also did not appear to know that Part VII of the Mental Health Act 1983 was repealed by the Court of Protection Rules 2007.                                                                                                                                               
Paras 20, 57, 63, Judgment, January 2013 – Bailii website                                                                     
Paras 12, 13, 23, 31, Junior Barrister’s Skeleton Argument


Judge Lush’s second reason for dismissing my claims was that ‘nearly half…concerned personal losses’ to myself.  In an effort to be helpful to the court, and in the absence of any guidance on how to present a claim, I had set out my claim in 2 sections.   The first section related to losses I had already incurred on behalf of the estate and which were ultimately owed to me from the estate. The second concerned losses which had yet to be proven and quantified.   With the possible exception of a claim (for £2,000) to cover losses incurred in raising multiple complaints - which no authority would investigate - all losses had been caused to my parents.  The fact that I was acting as Executrix on behalf of their estate did not mean I was claiming for ‘personal losses’.

Judge Lush misrepresented my claim by omitting key words which had appeared in my submission to Court.  In ‘Section 1’, after my name, I had written in brackets: ‘Representing the estate as Executor/Litigant in Person.’  In omitting these words in his judgment, an impression was given that I was seeking personal compensation, instead of claiming for losses due to the estate.  (In her Skeleton Argument, the junior barrister made the same ‘mistake.’)                                                                           
Paras 39, 46-47, 57, Judgment, January 2013 – Bailii website                                       
Skeleton Argument, second barrister


Even if it had been true, that half the claims related to my own personal losses, no consideration was given in the judgment to the ‘other half’, amounting to nearly £11,000.
Paras 39, 46-47, 57, Judgment, January 2013 – Bailii website


Judge Lush further misrepresented my claim by omitting details of items included under Claim 4 (‘Losses caused through mismanagement of my parents’ affairs’).  The amount of £8,376 had related to 3 separate claims, viz.

  1. Losses caused by the deputy’s failure to comply with court instructions (to market my parents’ property/prepare a Declaration of Trust)
  2. Losses caused by her failure to comply with mandatory panel rules, and
  3. Lost interest on Pension Credit, which she failed to claim for my mother.   

 

His judgment contained no mention of these 3 claims, therefore a reader would have no idea that they featured my application, or that I had submitted substantial supporting evidence.                                                                                                                              
Para 39, Judgment, January 2013 – Bailii website                                                                
Transcript, COP hearing Dec 2012


He further misrepresented my claim by failing to mention the 4 accounts which the deputy had failed to declare.  During the hearing I had drawn his attention to evidence relating to these accounts, but his judgment ignored the matter.      
Transcript, COP hearing Dec 2012


The judgment focussed almost exclusively on the ‘wrong matter’.  Judge Lush appeared to believe I was claiming for losses caused when the deputy had delayed unreasonably in paying my expenses on one occasion.  (Although she had caused us to lose £111,000 in mortgage protection insurance and incur penalty charges wiping out the value of the expenses, this matter had not been included in my claim against the bonds, since it concerned losses to my family, and not to my parents).  Evidence in the bundles showed this matter was settled out of court in 2007, yet this key fact was omitted in the judgment.  (In the settlement, I was able to recover the expenses and penalty charges, but was unable to claim for the consequential loss of £111,000, which remains a permanent loss to my family).

Again, the junior barrister had made the same ‘mistake.’  She had raised this matter in her Skeleton Argument and again during the hearing, and although I had stressed that it had nothing to do with my claim for forfeiture, it appears both herself and Judge Lush had ‘misread’ read my application.
Paras 23-25, 65 of Judgment, January 2013 – Bailii website                                                        
Correspondence to/from practice re.
settlement of claim (submitted in Bundles)             
Transcript of COP hearing, Dec 2012                                                                                          
Skeleton Arguments, second barrister                     


Instead of addressing my claims, the judgment concentrated on past complaints I had raised about the deputy’s conduct.   An entire section (14 paragraphs) is devoted to my ‘Complaints’, and para 19 begins:  Even before (the deputy) was discharged, Mrs Tricker had lodged a formal complaint.’  The implication is that I complained for no reason, but the evidence – if anyone had ever looked at it – speaks for itself.  The deputy’s bill alone shows how little work she did, and itself vindicates all my complaints, since it contains no evidence of any completed work for my parents.   (It includes charges of £5,134 for ‘perusing and considering’ matters, none of which she acted upon).

Para 22 conveys the impression that some authorities had investigated my complaints and ‘dismissed them.’   Yet, no organisation, other than Solicitors for the Elderly, would look into the complaints.  Letters in the bundles showing their refusals were all ignored, as was the letter from her practice refusing to look into my complaint about her conduct towards my parents. (The judgment only mentions the complaint about my expenses).  Ignored too, were letters from the deputy and practice deceiving me over the matter of the ‘Legal Executive’ charged in their bill. In para 65, Judge Lush claimed that my complaints had ‘shifted like quicksand’, while in reality they had snowballed as more and more evidence of negligence had come to light. (Indeed, I had once written to himself about the deputy’s conduct, when the PGO claimed she had ‘acted reasonably’ - despite their own repeated involvement in carrying out duties she had abandoned). 

Inevitably, when nobody is willing to look at evidence, a complainant is driven to produce yet more evidence, to reinforce their claims.  For years I had been bewildered by this constant rejection of incontrovertible evidence by those in authority, yet the ‘pattern’ had continued throughout the COP hearing and again in the judgment, which again did not address a single page of evidence.  The legal profession is not supposed to victimise complainants, yet over the years I had been routinely maligned for raising complaints, which all refused to consider.  A reluctance to consider evidence would suggest that it is too ‘compelling.’  (On the one occasion when evidence was looked at – during reassessment of the deputy’s bill - my complaints were shown to have been justified and the Costs Judge deleted multiple charges to reflect this).      

A judgment which contains 14 paragraphs relating to past complaints, but only one sentence covering the actual claims and evidence, should ring very loud alarm bells  to a reader.
Letters refusing to investigate complaints - from the Legal Complaints Service, Solicitors Regulation Authority and deputy’s practice          
Adjudicator’s Report, confirming Adjudicator had no remit to investigate complaints about a deputy
Paras 19-32, Judgment, Jan 2013
Bill of Costs                                                                                                                                                        

 


One example of how my complaints were dismissed out of hand involved the Solicitors Regulation Authority.  For over 6 years they claimed they had no remit to regulate a solicitor acting as a COP deputy.  (I have met others who received the same response from the SRA).  In 2013 the Independent Complaints Resolution Service found the SRA ‘had made a serious mistake in misleading (me) and in misdirecting itself as to its regulatory remit regarding solicitors appointed by the Court of Protection.’  However, despite the seriousness of their ‘mistake’, the SRA still refused to investigate the deputy’s conduct, even her fraudulent charges for a Legal Executive. (They claimed they would ‘only consider whether a firm has wilfully overcharged if a bill is reduced by more than 50%.’  The fact that the deputy had abused her position of trust over 2 vulnerable clients was of no concern to them).  Evidence in the bundles also showed that the practice had sent the SRA a defamatory email, calling me names, and urging them not to investigate my complaints.
Letters to/from SRA                                                                                                                                          
ICRS Report                                                                                                                                                                   
Email from practice to SRA


The judgment placed an extraordinary emphasis on a report by Solicitors for the Elderly, to whom I complained when the deputy’s practice had refused to look into similar complaints.  SFE’s report (paras 28-32) was based on an interview with the deputy - a colleague of the ‘investigator’ - and was conducted without access to the deputy’s files.  SFE is not a regulatory body, therefore it is curious that the judgment focussed extensively on their report, while omitting to quote from the more relevant ‘investigation’ by the PGO. 

Prior to the hearing, it had come to light that SFE had produced 2 conflicting versions of their report, upholding my complaint about Pension Credit in one, and failing to uphold it in the report sent to me.  Further evidence showed that all complaints initially considered (and rejected) by SFE had been well founded.  Yet, Judge Lush ignored any evidence casting the deputy, the PGO or SFE in a bad light.                                                                             
Paras 19-22, 63, Judgment, January 2013 – Bailii website                                                    
Paras 28-32, focus on SFE’s ‘investigation’
                                                                                        
2 different versions of SFE’s Report
                                        

 


The purpose of a reconsideration is to ‘consider evidence afresh.’  Yet neither Judge Ralton nor Judge Lush considered a single page of evidence.   Therefore, it cannot be said that my parents’ case received a hearing of any kind.
Para 57 of Judgment, January 2013 – Bailii website                                                                                
Judge Ralton Order, July 2012


Instead of explaining why my claims and complaints were unjustified, Judge Lush relied on making defamatory and negative comments about me.  As ‘punishment’ for bringing the claim, he  ordered me to pay the costs - for one year - of the deputy, her practice, and their entire legal team (5 solicitors and 2 barristers) knowing it would destroy us financially and prevent us from continuing to care for our severely disabled son.                                                                                                                            
Judgment, January 2013 – Bailii website    

 

Error in Law

I found his judgment shocking and perverse.  Not only had he made a serious error regarding the enforceability of my parents’ bonds, but my claims were barely mentioned.  None of the evidence he had ordered me to produce was considered and he appeared to have misread my entire application.                      

It took me some time to realise that, in order to avoid considering the overwhelming evidence in this case, he had ‘blocked’ my application by claiming the bonds should have been cancelled in 2006 and ‘padding out’ the judgment with irrelevant material.  In order to understand how I was deceived by Judge Lush (and the junior barrister) one needs to have some understanding of the legal terminology involved. 

In para 51 of the judgment he quoted the rules in place at the time the deputy was appointed.

In paras 52/53 he claimed the deputy was discharged on 9 December 2006.  (The actual date of the orders discharging her, was 9 February 2006).  He stated that when she had submitted her Final Accounts to the court and the new receiver had received any balance due, ‘her security is to be discharged.’

In para 55 he claimed ‘the surety company are no longer liable under the Master Bond’ because ‘paras (a) and (c) of the Master Bond’ have occurred.  These paragraphs respectively said:  The deputy/Surety Company shall remain liable under the bond…until (a) the patient’s death or (b) a new Receiver is appointed.’   And he repeated the phrase that, at this point, ‘security (could) be discharged.’  (My parents died in Nov 2007 and Jan 2009).   Finally, in para 56, he concluded that, because these 2 conditions had been fulfilled, the bonds were no longer enforceable (i.e. they should have been cancelled).

What Judge Lush omitted to say was that, prior to the MCA, the phrase ‘discharge security’ did not mean that the bond was cancelled.  When a deputy steps down - for whatever reason – there is obviously no further need for coverage or ‘liability’ under the bond, and premiums can therefore cease.  Discharging security’ simply meant that the bond ceased to provide any further cover from that point onwards.    

However, Judge Lush used the term ‘discharge security’ to give the impression that my parents’ bonds should have been cancelled.  At first sight, his ruling sounds plausible, but there is an ambiguity to the phrase ‘discharge security.’  After the MCA, it was used to mean cancellation of a bond, therefore someone unfamiliar with the way bonds operate could easily misconstrue its meaning in his judgment. 

There can be no doubt that, as arguably the country’s leading authority on COP law, Judge Lush was fully aware of the meaning of this phrase prior to the MCA.  He knew my parents’ bonds were no different to any other bonds taken out prior to the MCA, and would remain in force for some years - not cancelled as soon as the deputy’s Final Accounts were passed by the Court.

 

If bonds were cancelled shortly after a deputy ceased acting,  they would have been ‘pointless products’, against which Executors could never have claimed.   As a High Court Judge (Mr Justice Mann) later commented (in his judgment of Nov 2013):  What is the point of having a bond, which is designed to operate against a recalcitrant receiver, if in the most likely circumstances in which it is to be enforced…that is to say, the departure of a recalcitrant receiver and the discover of what had been going on…suddenly the bond has no effect?  I would regard that…as a rather extraordinary state of affairs.’

The Public Guardian, Alan Eccles, had also confirmed it was ‘a well-established fact’ that Executors could claim on bonds issued prior to the Mental Capacity Act.

Similarly, for one year, all the legal experts, including the deputy, the first barrister, Judge Ralton and even Judge Lush himself, had proceeded as though the bonds were in force.  It was only when confronted with overwhelming evidence against the deputy that Judge Lush revised his approach, and decided to ‘change the law’ to ‘shut the case down’.  To assist him in this, the deputy hired a junior barrister to deceive the Court by offering a completing flawed version of the law.

The first barrister, who worked closely with Judge Lush in publishing COP law books, had given the correct legal opinion on the status of my parents’ bonds to the Court, saying:  ‘The security given in this case was security given to the PGO…under the provisions under Rule 56 of the Court of Protection Rules 2001.  The security bonds remained in place as the point when the MCA 2005 came into force on 1.10.07 and both Part VII of the MHA 1983 and the Court of Protection Rules 2001 were repealed.  The security bonds remain in force.’

In 2011 Judge Lush himself had stated:  In October 2010 there were 26,778 ‘live’ bonds in place, and a further 32,402 historic bonds which had not yet been discharged.’ Since there is only one meaning of the word ‘historic’, this shows that, long before the hearing in my parents’ case, he was fully aware that historic bonds remained in force. My parents’ bonds had been among the 32,402 historic bonds mentioned in his speech.         

 

In para 57 of his judgment, he wrote: ‘No doubt Mrs Tricker will feel that justice has been denied to her purely because of a technicality.’  His statement contains 2 inaccuracies. Firstly, justice was not denied to myself, but to the 2 vulnerable clients under his protection.   Secondly, it was not denied ‘because of a technicality’, but because of a deception.  A deception perpetrated by himself and the junior barrister.  If someone lies in one area, they are likely to do so in others, and thereafter do not deserve to be given the benefit of the doubt in any circumstance.

As proof that I had been right about the rules all along, I later received confirmation from Marsh that the OPG had formally lapsed my parents’ bonds in June 2013  - around 7 years after the deputy stepped down - in line with the correct rules.

It is difficult to accept that a judge could abuse his authority to deceive a Litigant in Person in this way.   It took me some time to get over the shock of what he had done, but all the evidence points to the fact that he did this deliberately, with the sole intention of blocking my claim against his colleague.  It was wilful, because:


- He was the country’s leading authority on COP law and practice.                                                              
- He had lectured on the subject of security bonds.
- He had been in charge of the court for over 16 years, overseeing practice before and after the MCA.                             
- He is too intelligent to have made such a ‘schoolboy error.’                                                
- In his judgment he claimed there was ‘no need’
for him to explain the difference in pre-and post-MC rules, despite the year-long ‘confusion’ over these.
- He had previously confirmed that historic bonds remain in force.
- He ignored the first barrister’s legal opinion (confirming the bonds were in force).                   
- He ignored District Judge Ralton’s acceptance that the bonds remained in force.                
- He ignored the deputy’s initial confirmation that the bonds remained in force.                                                   
- He did not ask her to explain why she had ‘changed her mind’ over their status.     
- He did not contact Marsh/Aviva to establish the correct rules.                                                           
- In his judgment he made no mention of the long-running ‘confusion’ over the rules among so many leading COP experts.
- He later refused to hold a Wasted Costs hearing to address this issue.                                              
- For 3 years he was unwilling to publish his judgment.

It was not within his remit to retrospectively alter the law relating to a commercial product.  But he did so in order to avoid hearing my claims and incontrovertible evidence.  In my view, this was a criminal act.                       
‘Decision’ in Judgment, Jan 2013                                                                                                       
Conference, 2011                                                                                                                            
Statement by First Barrister, March 2012                                                                                                         
Email from Marsh re. lapsing of bonds                                                                                            
Public Guardian confirmation that Executors could claim on bonds                                   
Transcript of COP hearing, Dec 2012                                                                                     
Junior barrister’s Skeleton Argument

 

Rulings on Individual Claims

The last paragraph of his ‘Decision’ swept away all my claims in one general sentence without any reference to evidence. He made only a few general statements about the claims, which are as follows:

Claim 1.  Losses caused to the estate through challenging the deputy’s abusive bill were dismissed on the grounds that the Costs Judge who had reassessed the bill had not awarded costs to the estate, therefore it was inappropriate to re-litigate the same matter in the Court of Protection.   (Under the rule of Res Judicata litigants are prohibited from raising the same matter in two different courts).                                                                             
Para 57, Judgment, Jan 2013 – Bailii website


Bills for Court of Protection clients are assessed under Part 23 of the ‘Senior Courts Costs Office Guide.’    Para 23.10 (a) says:  Where the proceedings concern (the client’s) property and affairs, the general rule is that the costs of the proceedings…shall be paid by (the client) or charged to his estate.’  Para 23.10 (d) says: ‘The court may depart from the general principles referred to in (a)… if the circumstances justify. The court will have regard to all the circumstances, including (a) the conduct of the parties.’ 

Given his scope to depart from the general rule, I had assumed that the Costs Judge would award costs to the estate - since he was aware of all the deceptions in the bill and before/during SCCO proceedings, and of the practice’s 100% non-compliance with all court orders and directions.  However, he maintained that all costs would have to be borne by the estate.  He said: ‘You can make an application for your costs, but what good is it going to do you, because all that will happen is that I will order those costs to be paid out of the estate?’      
Transcript of SCCO hearing, Jan 2011                                                                                       
History of Non-Compliance, p.223-226 of Bundles for COP hearing, Dec 2012


Paras 33-36
cite proceedings in the Costs Office and Court of Appeal.  Para 36.3 confirms I was awarded £2,000 for the costs of my appeal over errors made by the Costs Judge.  Although the Appeal Judge was able to award costs for the appeal, he ruled that the Costs Judge had had no remit to award costs for the reassessment itself. These costs had come to nearly £7,000 and represented a considerable loss to the estate.  Since this loss had been incurred unnecessarily through the deputy’s dishonesty, it appeared to be covered under the bond’s guarantee, which contains no specified exemptions.                                                                                                                                            
Paras 33-36, Judgment, Jan 2013 – Bailii website

 


In refusing to award these costs,  Judge Lush has effectively negated the bond’s status as a ‘first demand’ bond.  His ruling also means that Court of Protection clients are not afforded the same rights as all other solicitors’ clients, who, under the Solicitors Act 1974, are entitled to costs if their bill is reduced by 20% or more on reassessment.  This not only discriminates against vulnerable clients, but effectively discourages any challenge to a bill, since the costs incurred in a reassessment are likely to exceed any reduction achieved.   It also increases the likelihood of overcharging by a solicitor/deputy, who can submit a bill knowing  a challenge is unlikely, if not impossible, given the difficulties faced by Executors in obtaining evidence and the position on costs.  Lastly, it undermines the role of an Executor, who has a legal duty to investigate any irregularities in the deceased’s affairs.
Judgment, January 2013 – Bailii website                                                                


In a judgment dated February 2015, Judge Lush claimed that a panel deputy’s costs for the first year were likely to be around £5,000 including VAT.   Yet, he was unconcerned by the deputy’s charges (some 9 years earlier) of £18,634 plus £470 in Fixed Costs.  The end result is that no court has ever addressed the deceptions and serious overcharging in my parents’ bill and the deputy has never been penalised for abusing her position of trust.                                                                                                                                                            
Judgment, February 2015


Claim 2.
If anything, the deputy’s practice had benefited from her abuse, since for 3 years (Nov 2006 – Nov 2009) they were able to earn interest on moneys which rightly belonged to my parents.  A Costs Judge can award interest on the overcharged amount for the duration of SCCO proceedings only.  In this case, the judge had awarded 3% on £6,000 for 2 years, viz. Nov 2009 to Nov 2011.  My claim against the bonds had been for interest on the 3 years prior to SCCO proceedings.  However, in para 57 of his judgment, Judge Lush claimed that all such matters had been ‘judicially decided’ during proceedings at the Costs Office.  I had submitted evidence showing that the Costs Judge had no remit to award interest prior to the proceedings, but this was ignored.                                                                                                                                  
Para 57, Judgment, Jan 2013 – Bailii website


Claim 3.
The Costs Officer who had originally assessed the deputy’s bill had written that it had been ‘provisionally assessed’ only, and was subject to receiving confirmation from the deputy that she had not taken Fixed Costs in relation to my parents’ Annual Accounts, plus other confirmations.  However, following the release of papers from the deputy’s files in late 2011, I discovered that she had taken Fixed Costs and had never replied to the Costs Officer.  (She had also submitted further invoices to my parents’ second deputy, which he had refused to pay). Judge Lush dismissed my claim for the return of the Fixed Costs, other than to say that all such matters should have been addressed during the reassessment.  Evidence contained in the bundles - showing I had been unaware of this matter during the reassessment - was ignored.
Judgment, January 2013 – Bailii website                                                                                         
Bundles for COP hearing

 


Claim 4.
This claim related to the costs of raising complaints about the deputy’s bill and conduct over a 4 year period  - Dec 2005 to Nov 2009 - which nobody (other than Solicitors for the Elderly) would investigate.  Of all the claims, this could be seen as a claim for personal losses to myself, since I had personally borne all the costs of raising the complaints.  However, since I had been acting in my parents’ best interests in trying to defend them against a negligent deputy, and since many of the costs had been incurred when acting as Executrix, this claim should have been considered in the judgment. However, it was simply dismissed as a claim for personal losses to myself.
Para 57, Judgment, Jan 2013 – Bailii website    


Claim 5.
This claim related to charges the deputy had made for non-fiduciary matters, discovered in November 2011 when papers were released from her files.  Before I asked for her removal she had written about me in ‘glowing terms’, but as soon as I  asked for her to be replaced, she immediately began spreading false allegations about me to third parties, insinuating that I had financially and physically abused my parents.  She then encouraged these third parties to report ‘their’ concerns to the relevant authorities, as if they had originated from themselves.  She produced no evidence to substantiate her allegations, and ignored reports on file from social services and others, confirming I was providing good quality care to my parents.  

With regard to her accusation of financial abuse, she alone had control of my parents’ finances and knew we had gone into serious debt to help them.   Her actions were therefore malicious, and carried out to detract from her own negligence.  She charged my parents c. £1,100 for making these allegations, yet this matter was again dismissed in the judgment as something which should have been raised during SCCO proceedings.  Evidence submitted in the bundles - showing that attendance notes relating to her ‘vendetta’ had not been released until after the reassessment proceedings - was ignored.  

(She had also charged my parents c. £1,000 for writing a report on my family.  It included private details of my sons’ education and medical conditions, my husband’s pension and leisure pursuits, and even covered what my disabled son was having for supper that day.  A fiduciary is engaged to carry out financial duties only, but it appeared that, when confronted with even simple financial matters, the deputy was ‘out of her depth’ and/or  had no time for these).                                         
Inappropriate charges in Bill of Costs                                                                                      
Attendance Notes re. calls to third parties/PGO                                                                 
Letters from Social Services re. care being provided

The former Public Guardian, Martin John, described some of the signs which can indicate that a deputy has been acting negligently.  One example is when the deputy puts up a ‘smokescreen’, by conducting a personal vendetta against a person who may be probing into their malpractice.  The deputy then focusses solely on discussing this, rather than their own malpractice.                                                                                                 
Conference, 2011


Claim 6 (a).
This claim was divided into 3 parts, the first being for losses caused by the deputy’s failure to comply with court instructions. Losses caused by this failure is specified in all bonds.  In my parents’ case, the deputy had ignored all court instructions for one year - to market my parents’ property (and prepare a Declaration of Trust registering their interest in our property).  This had led to substantial losses for them, including a devaluation in their property (it was a on a short lease), additional service charges, lost interest from a sale, £500 in charges made for discussing potential offers in advance of a valuation, and the depletion of their working capital to the point where my mother’s account became overdrawn, and she had insufficient funds to pay for her living expenses and the court’s charges.

In addition, the deputy had charged my parents hundreds of pounds for responding to 22 ‘chasing’ emails/phone calls from the court requesting her compliance.  (In Feb 2005 she had been ordered to market my parents’ property ‘immediately’, but by Feb 2006 she had not even begun the process).  Despite all the above, this claim was not even mentioned in the judgment.  It appears to have been swept into Judge Lush’s claim (in para 20), that a PGO officer had considered this complaint in 2006.   However, none of the evidence I had submitted in support of this claim had previously been available to the clerical officer. (For example, the deputy’s bill had not been written when the officer had ‘looked into’ this complaint, therefore she could not have known about the 22 charges for responding to the court’s ‘chasing’ emails/calls).  Yet, once again, all my evidence was ignored.

Since selling a client’s property is one of the most common orders/instructions given to deputies by the court, it appears the bond’s wording  - to pay for any losses caused by the deputy’s failure to comply with court instructions – has always been inaccurate.
Emails/calls from court, chasing compliance                                                                                   
Related charges in Bill of Costs
                                                                                                          
Attendance notes re. overdrawn account                                                                                                           
Para 20, Judgment Jan 2013


Claim 6 (b).
  The second part of my claim under this heading related to the deputy’s failure to comply with mandatory rules.   Panel deputies had a duty to request a court decision ‘within 5 days of the matter arising.’  The deputy’s failure - after 4 months - to approach the court with an urgent request, had caused substantial losses to my parents, as well as considerable distress for the entire family.  (I had asked if she would place a request before the Court for an immediate release of funds from my parents’ accounts, to cap the consequential debts we were incurring through their default.   I had visited her in June 2005, stressing that we faced repossession of our jointly owned home, but by October she had still not approached the court.  The court later ordered these consequential losses to be repaid to us from my parents’ accounts.) Had the deputy complied with panel rules, our debts would have been brought under control quickly, and the losses caused to my parents - through having to pay for these - would have been kept to a minimum.

A deputy has a duty of care to her vulnerable clients. It cannot be argued that my parents’ deputy acted in their best interests by placing them at risk of losing their home and financial investment.  However, once again, Judge Lush dismissed this claim without any explanation, and made no reference to it in his judgment.
Rule 6.6 – Application for Membership of Professional Receivers Panel                       
Correspondence with PGO


Claim 6 (c ).
The judgment itself provided confirmation that the deputy had not applied for Pension Credit for my mother.  (I had also submitted evidence showing she had charged for reading urgent letters from the DWP, which she then ignored). Yet, my claim – for interest lost on this allowance – was not mentioned in the judgment.
Paras 31-32 of Judgment, Jan 2013Bailii website


Claim 7.
   The fundamental duty of a fiduciary is to declare and account for all moneys belonging to the client.  I had submitted evidence of 4 accounts which the deputy had known about for most of her tenure, but failed to declare in their Annual Accounts.   She had claimed (to Social Services) that 3 accounts contained around £24,000 between them.  A 4th account belonging to my father had contained £2,000 in June 2005.  Evidence in the bundles showed that by the end of her deputyship, its balance had reduced to £10.  Yet, she did not declare any of these accounts nor account for the £26,000 they contained.                                                                                                    
Attendance notes written by Social Services/deputy re. accounts          
Statements/correspondence from Halifax                                                                                           
Transcript of hearing, Dec 2012 – directing Judge Lush to evidence in Bundles
           

 


Towards the end of her year as deputy, the court had asked her to confirm ‘by return’ how much money was in my parents’ accounts.  The deputy ignored this letter, despite being in her office at the time.  Three weeks later the court wrote again in a letter headed ‘URGENT.’ This time she responded, claiming she was ‘unable to provide this information.’  In her bill she charged for reading/responding to the court’s letters and for writing to the Halifax about these accounts, but to date she has never accounted for any of these moneys.
Transcripts of COP hearing, Dec 2012 


A few months before my parents’ hearing, Judge Lush had issued a judgment, in which he wrote that a fiduciary is ‘expected to keep and be constantly ready to produce correct accounts of all their dealings and transactions on the (client’s) behalf.’  He stressed that a vulnerable client has a ‘right to have their financial affairs managed competently, honestly…for their benefit and for the possible prevention of crime.‘  He also emphasised ‘how severely the court deals with any irregularity.’
Judgment, July 2012


In a statement to the House of Commons prior to the introduction of the MCA, he had also stated the following:   If the legislation is to have any teeth, the government needs to make it clear that the financial abuse of people who lack capacity is an area of zero tolerance.  I believe that anyone who acts for an incapacitated person....should be bound by various obligations, for example…to act reasonably…diligently …honestly… to protect him or her from abuse…not profiting from (their) position…’                                   
Statement to House of Commons


Yet, in my parents’ case none of the above seemed to matter.  His judgment made no reference to the 4 undeclared accounts and he was unconcerned by this blatant breach of a fiduciary’s role.                                                                                                 
Statement to House of Commons


I had submitted my claim for forfeiture on the basis of the High Court’s definition of a surety bond and the wording in my parents’ bonds, and on the assumption that my claims and evidence would be considered by a judge.   Instead I was subjected to a near farcical experience, in which some of the country’s leading experts suffered ‘collective amnesia’ over a simple rule and did not appear to have read my application.  Instead of considering the claims and substantial evidence, Judge Lush joined in with the deputy’s vendetta and I was insulted and ‘punished’ for bringing the claim to court.                                                                                                                                                              
Para 66,
Judgment, January 2013 – Bailii website         

 

Deceptions/Fraud

In the Fraud Act 2006, Fraud by Misrepresentation is defined as follows:  ‘Where a Defendant makes a false representation dishonestly, knowing that the representation was or might be untrue or misleading, with intent to make a gain for himself or another or to cause loss to another.’

The definition of Fraud by Abuse of Position says:  ‘Where a Defendant occupies a position in which he was expected to safeguard or not to act against the financial interests of another and has abused that position, dishonestly, by intending that abuse to make a gain/cause a loss.’

The bundles contained 23 pages alleging the deputy and her practice had committed fraud.  This evidence comprised letters showing she had deceived the SCCO and myself over who was charging in the bill, and had made misleading statements regarding the amount of work she had undertaken.   The deputy and her practice had further deceived Costs Judges during SCCO proceedings, and a High Court judge – Mr Justice Wilkie – declared the deputy had ‘double charged’ throughout her bill.  

The deputy and partners at her practice had claimed they had not known the status of a person they had hired and ‘wrongly assumed’ she was a Legal Executive – despite all knowing that she had been working at the deputy’s former practice as a part-time non fee earning secretary.  Evidence of further deceptions (over a file sharing arrangement with the second deputy, and the 4 undeclared accounts) was also submitted.  However, Judge Lush dismissed the notion that the deputy and her practice had committed fraud, without addressing any of this evidence.
Pages 200-222, 634-650 in Bundles for COP hearing, Dec 2012

 

‘Covering up’

During the court process it came to light that Solicitors for the Elderly had issued two conflicting versions of their report into my complaints about the deputy.   The report sent to me had not upheld my complaint, that the deputy had failed to claim Pension Credit for my mother.  However, the copy sent to the deputy had upheld this complaint, recommending that she ‘received further training on welfare benefits.’  This second copy was quoted in the judgment.
Paras 30-31 of Judgment, January 2013 – Bailii website             
See also Claim 3 above

 


A clerical officer at the PGO (the same person who had apparently ‘investigated’ my claims/complaints in 2006) had also claimed that the deputy had ‘dealt with Pension Credit’,  knowing this was not true.  (It was claimed retrospectively by the second deputy).
Letter from PGO re. deception over Pension Credit (contained in Bundles) 


Despite evidence showing both SFE and the PGO had covered up for the deputy in relation to Pension Credit, and further evidence showing the PGO had covered up in relation to their investigation into my claims in 2006, Judge Lush determined that their actions did not amount to covering up.   (When I had raised these matters at the hearing, he did not admit he was Patron of Solicitors for the Elderly).  His judgment devoted a paragraph to promoting SFE - the same amount of space given to considering my entire claim and 556 pages of evidence – even though SFE is a self-serving organisation with no regulatory powers.  I can only assume their report was used to ‘pad out’ the judgment in the absence of any report from the PGO itself.  His judgment did not mention their  opposing reports, and in assessing whether this amounted to covering up, one might ask whether it would be acceptable for a judge to issue 2 conflicting judgments in the same case?                                                                                                        
Paras 27-32, 62 of Judgment, January 2013 (re. Solicitors for the Elderly)                                      
Pages 463-598 in Bundles, re. PGO ‘cover up’                                                                                  
2 versions of SFE’s report                                                                                                                                                           
(See also Claim 3 above)    

 

Appeal to Court of Protection

Given the judgment’s bizarre and vindictive nature, I carried out some research into possible connections between the parties.  The deputy had given some indication of a friendship with Judge Lush during our first meeting, in which she had referred to him by his first name and confided some of the things he had told her about the Court.  On further investigation, I discovered the following:

Judge Lush had close commercial connections with every single legal professional involved in the case. He was Consultant Editor for publishing companies associated with both the first and second barrister's chambers. The first barrister was his co-editor at one company, which had published books for 2 members of the practice representing the deputy and for both members of Solicitors for the Elderly, who had issued conflicting reports into the deputy's conduct. Both SFE members had also contributed to books associated with the second barrister's chambers. At the time of the COP hearing Judge Lush (who was Patron of SFE) was about to publish a further book with one of the members (the former Chair of SFE). The deputy herself was a former member of the practice managing her legal team, and Chair of a branch of STEP, of which Judge Lush was a judicial member. Crucially, I discovered she had been assisting him in completing a commercial law book at the same time as events in my claim. It also appears they attended the same university at the same time. He did not declare any of these interests.

 

I appealed his judgment in Feb 2013, primarily on the grounds that he (and the junior barrister) had erred over the rules on expiry of pre-MCA bonds and other aspects of my application.  I also claimed he should have recused himself from hearing the case, and quoted the connections between the parties.  I considered that these connections, along with the vindictive nature of the judgment itself, gave rise to a clear perception of bias.                                                                                                                                                
Appeal application


I also submitted 3 urgent court applications, including one for a wasted costs hearing.  A definition of a Wasted Costs Order is contained in the ‘Senior Courts Costs Office Guide.’  It says: ‘An order against a legal representative which orders (them) to meet the costs found to have been incurred as a result of improper, unreasonable or negligent acts or omissions on the part of the legal representative or any consequential costs.’   Clearly, if the first barrister had misled the court over the rules, I was entitled to claim for the costs I had incurred as a result of his negligence.  Both barristers’ legal opinions could not be right, therefore Judge Lush should have held a wasted costs hearing to decide which, of the two, was telling the truth.  Clearly I had been misled by one of them, if not by himself.  Either way, he had a duty to research the law and clarify it for the court, but instead he ignored this crucial application, and all requests for a response.

Holding such a hearing would have forced him to clarify the rules on expiry of the bonds and to ‘debate’ these with the first barrister, his co-editor of books on COP law.  Failing to respond to court applications is a breach of statutory procedures, and as the person responsible for ‘overseeing and directing the work of the court’, Judge Lush bore overall responsibility for ensuring that the Court complied with these procedures.  Yet, he did not respond to any of my applications or to requests for information on their progress.  In ignoring these, he wilfully undermined the judicial process and denied me the ‘full and fair’ hearing, to which I was entitled.
3 formal applications, Feb and May 2013                                                                                       
Court of Protection Report, 2009


At one point I contacted Ross Hamilton (former Court Manager and Head of Listings & Appeals) regarding the Court’s failure to respond to my applications. Following our telephone discussion, the court issued a letter dated 11 June 2013, confirming that all 3 applications would be heard the following week.  However, none of these hearings took place, and all subsequent requests for information on the outcomes were ignored.
Letter from Court of Protection, June 2013                                                                                          
Emails to COP, requesting information


Key Performance Indicators for the Court of Protection are as follows:                                         

In 95 % of cases, we will contact the applicant within 20 working days of receipt of the formal application.’ 

 ‘In 98% of applications the court will give a direction within 20 weeks.’ 

‘We will respond to 95% of correspondence, including letters, faxes and emails) within 10 working days of receipt.’

Yet, I did not receive a single response to any of my applications/letters/emails or telephone calls.
Court of Protection Reports

 


Several weeks before I received Judge Lush’s decision on whether to grant permission to appeal,  I received a one line email from the court headed  Permission to Appeal.’ It advised  that my papers had been passed to a High Court judge in the Family Division.  I called the sender, who advised me that Judge Lush had sent some papers and notes to Ms Justice Pauffley, adding that if she wanted so see further papers, he would send them to her.  Concerned by this breach in procedure, I delivered some ‘Confidential’ papers of my own to the Family Division, but these were never passed to Ms Justice Pauffley, as promised.  Instead, they were sent back to Judge Lush.
Email from COP headed ‘Permission to Appeal’                                                                                                    
Confirmation of receipt of ‘Confidential Documents’ delivered to Family Division’

 


Two weeks later I received a telephone call from the court, advising that my appeal papers had since been forwarded to Chancery Division, but all been ‘lost’ during the course of delivery.  Since I had yet to receive Judge Lush’s response to my appeal, I was concerned by this further breach in procedure.  I therefore wrote to him, enclosing a copy of the court’s letter of 11 June (promising to hear all my applications the following week) and asking when these applications would be addressed.  On 10 July, he replied, refusing permission to appeal.  He confirmed that my papers had been sent to Chancery Division on 21st June, and that he ‘had heard nothing further.’  He did not explain what he was expecting to ‘hear’, or why he had (apparently) taken over my role in appealing to a higher court.  He did not address my query about the 3 outstanding applications.
Letter to/from Judge Lush                                                                                                                            
Letter from COP dated 11 June, 2013                                                                                                                 
Emails re. ‘lost’ papers

 


The correct appeal procedure is for the appellant to ask the first judge for permission to appeal his judgment. If he refuses, the appellant may then appeal to a higher court (in this case, Chancery Division).  This involves paying a fee into the Royal Courts of Justice Civil Appeals Division and submitting a fresh application by completing an Appellant’s Notice (form N161) - a different form from the one used to appeal a COP decision. The ‘new’ procedure introduced by Judge Lush appeared to involve him paying my fee and completing form N161 on my behalf.                                                                            
Correct appeal procedure confirmed by COP Manager                                                                                     
COP Rules 2007, Part 20                                                                                                                                  


On exactly the same day
that Judge Lush wrote to me refusing permission to appeal, he presided over a hearing in a case involving forfeiture of a lay deputy’s bond.   In his judgment he wrote:  Normally, the personal representatives would make an application to call in a security bond after the death of the person to whom the proceeding related.’   Yet, in refusing me permission to appeal, he was simultaneously maintaining that personal representatives could not claim on a bond after the client has died.  In para 76 of his judgment he also quoted the ‘Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (reg.37.3).’  These regulations confirmed that bonds remain in force after a deputy stops acting and/or the client dies.   Since all bonds operate on the same principle,  he was simultaneously saying one thing to myself and another in this second, contemporaneous judgment.

He had placed himself in a position where he was dealing with 2 cases for forfeiture, both of which required confirmation of the same rule. A judge has no credibility if, on the same day, he is unable to quote a simple rule consistently, particularly one which (in my parents’ case) he had had more than a year to research.
Judgment, 30 July 2013, re. Joan Treadwell (deceased) 

 


In the second judgment, he devoted 12 pages to considering evidence -  in stark contrast to my parents’ case, where he considered none at all.  One cannot reach fair and informed decisions without considering evidence, nor can others understand how those decisions have been reached, unless the judge provides a reasoned analysis of these.                      
Judgment, 30 July 2013, re. Joan Treadwell (deceased)              


In the second judgment, he also made the following comments: 

‘Article 6 of the European Convention on Human Rights requires that justice should be seen to be done and, in general, the judgment of the court should be public unless there is good reason for it not to be published or for the identity of the parties not to be disclosed.

Because the focus of the Mental Capacity Act is on promoting and   safeguarding the rights and interests of people who lack capacity, it is important that decisions of the Court of Protection should be open to scrutiny in order to enhance accountability, consistency and predictability.

The publication of judgments also plays an educative role in informing the public about what deputies and attorneys can and cannot do, what happens when they misbehave, and how the…judges of the Court of Protection deal with such cases.

When a deputy or attorney exceeds their authority, or behaves in a way that is not in the best interests of a person who lacks capacity, they forfeit any right to confidentiality and there is no good reason why their identity and conduct should not be made public.’         

Yet, despite his emphatic support for transparency and publishing judgments, this very judgment was later removed from Bailii and can no longer be seen by the public!
Judgment, 30 July 2013, re. Joan Treadwell (deceased) - removed from Bailii website


The 2 judgments show how Judge Lush treated a claim against a lay deputy very differently from one involving his colleague.  In the lay deputy’s judgment he quoted the law correctly, considered copious evidence and was keen to publicise his judgment.  In my parents’ case, he quoted the rules incorrectly, ignored all evidence and was reluctant to publish the judgment.  I can only surmise that the reason the second judgment was removed from Bailii was that it highlighted his own unacceptable ‘confusion’ over the same simple rule.  It is not credible that an experienced judge, who had been in charge of the court for over 16 years and who wrote and lectured on COP law and surety bonds, could have made such an elementary error.
Judgments, Jan 2013 and July 2013


Since the Court had reported the second judgment at the time, it is still widely available on ‘legal’ websites, and is quoted in numerous other judgments.  It also featured in the monthly COP newsletter issued by the first barrister’s chambers. Interestingly, the first barrister has never included details of my parents’ judgment in his newsletter, despite its profound impact on the bond’s terms and conditions.
Judgment, 30 July 2013, re. Joan Treadwell (deceased)                                              
Newsletter, 1st barrister’s chambers


In most respects the judgment in my parents’ case was of far greater significance than the judgment of July 2013, since it was effectively a ‘test case.’  For the first time the court was being asked to rule on multiple claims against a professional deputy and to clarify what is, and is not, covered under the bonds.  Yet, it would take nearly 3 years, and considerable pressure from myself, before Judge Lush finally agreed to publication.                                                                                                                                          
Application to publish judgment, July 2015                                                                                       
Court Order, Nov 2015


In a Freedom of Information Request, I asked:   Prior to the Mental Capacity Act, were there any cases of security bonds held by professional receivers or lay deputies being forfeited by the Court of Protection after the death of the client?   HMCTS responded, saying all closed case files prior to Oct 2007 ‘had been destroyed’.   Yet, these ‘destroyed files’ would have included the majority of the 177 cases, in which lay deputies’ bonds had been forfeited by the Court (as confirmed in ’History of Claims’ above).  One might question why none of these cases was ever reported, and why there is no published case law of any kind on Bailii, between 2001 and 2008?   These cases constituted the only bank of case law involving the bonds, yet all are missing.  It cannot be that all involved identical claims, yet without access to their judgments, no one can see the range of claims made, which claims were accepted or rejected, or how judges reached their decisions.  It is curious that so many judgments on such an ill-reported subject were withheld, and since Judge Lush almost certainly presided over some of these, I can only suspect that on some occasions he did indeed order forfeiture of a bond after a deputy had ceased acting for the client and/or the client had died – contradicting all he had said in my parents’ judgment.                                                                                                                              
Freedom of Information response, 11 June 2015


His actions clearly called into question the conduct of the junior barrister.  The fact that he was ‘persuaded’ by her flawed interpretations of the law, along with their identical errors in misreading my application, created an immediate perception of collusion.  Under normal circumstances, it would be professional suicide for a junior barrister to question the legal opinion given by more experienced practitioners, yet she appeared confident that Judge Lush would agree with her own ‘nonsensical’ version of the law.  As indeed he did.

 

Appeal to Chancery Division

I ignored Judge Lush’s version of the appeal procedure and lodged an appeal directly in Chancery Division, following the correct process.   (Chancery Division clerks confirmed he had acted incorrectly).  Despite having done this, by now I had little faith in the outcome of this second application, given Judge Lush’s ‘personal intervention’ and his breaches of statutory procedures.
Appeal to Chancery Division, July 2012             


I received an Order from Mr Justice Mann, which, as I had expected, refused permission to appeal on all grounds.  An error in law and irregularities in the lower court are fundamental grounds for granting permission to appeal, yet he was unconcerned by  multiple irregularities in the Court of Protection – namely, Judge Lush’s error over the rules on pre-MCA bonds, his breach of statutory procedures in ignoring 3 court  applications, his refusal to hold a wasted costs hearing, his breach of appeal procedures, his focus on the wrong matter, his failure to consider evidence and his misconception that clerical officers have authority to hear contentious cases.
Court Order, July 2013


I was later granted a brief oral hearing before Mr Justice Mann, in which I repeated all the above irregularities.  I was also able to produce confirmation that my parents’ bonds had been in force throughout proceedings at the Court of Protection. (The OPG had formally lapsed them in June 2013, in line with the correct rules).                                       
Transcript of oral hearing, Nov 2013                                                                                        
Email re. OPG lapsing of bonds


A re-consideration is supposed to consider evidence afresh.  However, in ignoring nearly 600 pages of evidence and simply stating that he ‘agreed’ with District Judge Ralton (who himself had not considered any evidence), Judge Lush had failed to carry out a re-consideration. I therefore argued that I had not received a full and fair hearing, and that ‘justice had not been seen to be done.’ 
Transcript of oral hearing, Nov 2013      


I again raised the matter of the 4 undeclared accounts, and the failure by Judge Lush to address a single page of evidence.  Mr Justice Mann admitted that Judge Lush had dealt with the claims ‘extremely shortly’, saying:  And so…he had all this material, and he decided there was nothing in it, or that is implicit in what he says in para 57…it is impossible for a judge coming fresh to this to go through and work out what the claims may or may not be.’  In making this point, he confirmed he had no idea of what the claims were, how Judge Lush had reached his decisions or what evidence he had used.
Transcript of oral hearing, Nov 2013


I showed Mr Justice Mann a copy of the book, in which Judge Lush had personally thanked the deputy for helping him to complete certain chapters.    The preface was dated June 2005 - around the same time that she had been ignoring urgent duties for my parents.  I claimed Judge Lush should have recused himself from hearing the case, since he was partly responsible for diverting her from her fiduciary role, and was therefore ‘indirectly involved’ in the case.   I also claimed that his numerous breaches of statutory procedures, his inability to recall a simple rule, his focus on an ‘irrelevant’ matter and failure to consider a single page of evidence, all contributed to a perception of bias.
Copy of legal book, published 2005 


At one point I raised the matter of wasted costs, saying:  I should have been able to have a wasted costs hearing.  The Court agreed to hold a wasted costs hearing…am I not entitled to that?’   To this, Mr Justice Mann replied:  ‘Well, if the Court agreed to hold one, you had better try and go back and get one.’  He said this, knowing it would be impossible to retrace the court process.                                                                                           
Transcript of oral hearing, Nov 2013


If an error in law in the lower court had prevented a hearing of the claims and evidence, it should follow that permission to appeal should be granted, to enable a proper hearing to take place.  Yet, instead of granting permission, Mr Justice Mann gave me a couple of minutes to ‘prove’ some of my claims, knowing that I had no access to the bundle of evidence.  (Since I had not been expecting to have my claims heard and settled in a brief oral hearing, I had not submitted the 556 pages of evidence in support of my claims.  To have done so would have been inappropriate, if not impertinent).  In the minute or so left to me I raised 2 of the claims.  The first was my claim for the estate’s costs in challenging the deputy’s abusive bill.  Mr Justice Mann immediately dismissed this claim, despite my argument that the bonds were supposed to cover any losses caused to the client. If a Costs Judge has no remit to award costs in a Court of Protection assessment and these cannot be refunded through the bonds, it renders any challenge to a bill pointless. It also means the bond is subject to the narrow remits of other courts, and does not perform as a ‘stand-alone’ commercial product.

I tried to address the matter of the deputy’s failure to comply with court instructions to market my parents’ property, but Mr Justice Mann dismissed this claim on the basis that both COP judges had concluded ‘there was nothing in it.’ I argued that, since neither judge had considered a single page of evidence relating to the claim, and had not even mentioned it in either of their judgments, there had been no ‘full and fair hearing’ of the matter.    However, at this point Mr Justice Mann ended the hearing.
Transcript of oral hearing, Nov 2013


Despite all the above, he again refused permission to appeal.   In common with Judge Lush, he too was unable clarify the law on expiry of bonds, despite copious evidence showing that Judge Lush had made a serious error in law.  His decision was therefore based on an incomplete understanding of the law, an incomplete knowledge of how Judge Lush had reached his decisions on 7 individual claims and an acceptance of multiple irregularities in the lower court, about which he had nothing to say.
Judgment dated Nov 2013


On the matter of recusal, he made no comment on my point, that Judge Lush was ‘indirectly involved’ in the case through having engaged the deputy’s assistance in a commercial project at the time of events in my claim.  (I considered a judge would automatically have to recuse himself from hearing a case if he was currently working with a Respondent on a commercial project, and that this ‘contemporaneous aspect’ should still apply even if the case was being heard some years later).  Mr Justice Mann simply stated that such matters must be raised ‘properly and formally’.  To this day, I do not know how this is achieved, other than through an appeal.
Chancery Division Judgment, Nov 2013                                                                                                  
Email re. lapsing of bonds by OPG                                                                                            
Evidence of irregularities – 3 unanswered applications, breaches of appeal procedure


With regard to the costs of challenging the deputy’s abusive bill, Mr Justice Mann said:  The bond is designed to compensate for a failure to carry out the duties in a receivership.  In order to be able to claim under the bond…you have to be able to sue the receiver for the same amount of money, and you cannot sue the receiver for a decision that a costs judge reached.  The bond merely gives an additional financial resource for satisfying claims.’   His statement did not clarify why an insurance policy is affected by the narrower remit of another court (the SCCO).   It is interesting that Judge Lush did not provide the same explanation when considering this claim.
Transcript of hearing, Nov 2013


Although (apparently) the Costs Judge had had no remit to award costs, it had been my understanding that the Court of Protection could invoke the bond’s guarantee - to repay any loss - however it had been incurred.   A case merits reporting under the following conditions:  ‘It must either introduce a new principle or a new rule of law, materially modify an existing principle of law or settle a doubtful question of law.’  Since 2 judges have now ruled that Court of Protection clients are not entitled to claim against the bonds for the costs of exposing/challenging a financially abusive bill, their decisions have consolidated the matter into case law, which should have been communicated to all bond holders.  Yet, disturbingly, the Court has continued to withhold their rulings from its clients.                                                                                                                     
Transcript & Judgment of oral hearing, Nov 2013                                                                    
SOAS Library: Understanding UK Case Law


On the matter of losses caused by the deputy’s failure to comply with court instructions, Mr Justice Mann said:  It seems…that that sort of claim is going to have to be made in the civil courts and not in the Court of Protection…it seems highly unlikely that in matters such as a culpable failure to sell a flat for a year with a consequential loss of value in the flat, that the Court of Protection would embark on that sort of inquiry.  This is a claim which is rather better brought in the civil courts, if it is to be brought at all.’    Since losses caused by a deputy’s failure to comply with court instructions have always been specified as ‘claimable’ under the bonds, the Court had a duty to delete this clause from the policy.  Yet, 3 years later, bonds are still being sold to clients with the same ‘deceptive‘ wording.
Judgment, Nov 2013


Following Mr Justice Mann’s refusal of permission, I attempted to appeal further, to the Court of Appeal.  The COA responded, saying the appeal process had now been exhausted, and the decision of Mr Justice Mann was final.                                                          
Letter from Court of Appeal                                                                                                                                                                              


On 18 March, I wrote to Justice Mann, asking if he would publish his judgment.  He did not reply. 
Letter to Mr Justice Mann



I sent a second letter by Recorded Delivery to Mr Justice Mann, again requesting publication of his judgment. His reply stated: 'publication is confined to cases which…are likely to be of interest either as a matter of precedent or otherwise.' Since he did not consider his judgment 'had any particular value in that respect', he declined to publish it himself, although he confirmed I was at liberty to make it public myself. 
Letter to Mr Justice Mann

 

Summary of Case Management

In summary, my experience of a Court of Protection application was as follows:


Having proceeded as though the bonds were in force, at the hearing Judge Lush was unable to recall the rules on expiry of pre-MCA bonds.

Much of the hearing was spent listening to a junior barrister’s ‘misguided’ view of these. 

Judge Lush did not query why the deputy had declared the bonds were in force.

He did not query why the first barrister had declared the bonds were in force.

He did not question why District Judge Ralton had proceeded as though the bonds were in force.

He did not ask me a single question about my claims.

He did not ask the deputy a single question about my claims.

He did not refer to a single page of evidence.

He issued a judgment, claiming all pre-MCA bonds were cancelled – before Executors could claim against them.

He claimed it was not ‘necessary’ for him to explain differences in the law, before and after the Mental Capacity Act.

He misrepresented some of my submissions.

His judgment dismissed all 7 claims in one sweeping sentence.

He did not address any claim individually or explain why it did not meet the bond’s terms and conditions.

Some of the claims were not mentioned in the judgment. 

In ignoring 556 pages of evidence, the hearing did not fulfil the requirements of a ‘reconsideration.’

Although ruling that vulnerable clients cannot claim against the bonds for the costs of exposing a deputy’s abusive bill, he did not report this ‘precedent’ to clients or ensure that the bonds were amended to reflect this exemption.

He ignored the matter of 4 accounts, which the deputy had failed to declare in my parents’ annual accounts and from which moneys had ‘gone missing.’

He ‘misread’ my application, believing I had claimed for losses caused by the late payment of my expenses on one occasion, when I had not claimed for these.

He focussed almost exclusively on this matter, while ignoring the 7 actual claims

He bestowed retrospective powers on clerical officers to hear contentious claims.

He ignored evidence from the Public Guardian showing that the PGO had never carried out a formal investigation. 

He ignored evidence showing the PGO had deceived me over their ‘investigation.’

He ignored evidence showing the PGO had deceived me over the matter of Pension Credit.

He ignored evidence showing that Solicitors for the Elderly had deceived me over the matter of Pension Credit.

He ruled it is not ‘fraud’ for a deputy to charge for non-fee earning secretaries, while calling them Legal Executives.

He ruled it is not ‘covering up’ to issue 2 conflicting conclusions into the same complaint.

He gave the impression that others had investigated my complaints and found them to be groundless, ignoring evidence showing that no regulatory authority had ever looked into these.

He ignored evidence from the deputy’s files and Costs Judge, vindicating all my past complaints.

He made sweeping generalised statements, without showing how he had reached any of his conclusions.

He relied on calling me names, rather than addressing evidence.

When I appealed his decision on the basis that he had erred over the rules, he did not correct his ‘error.’

On the same day he refused permission to appeal, he presided over another hearing in which he was able to recall the correct rules.

In the judgment for the above hearing, he devoted 12 pages to considering evidence and stressed the need for transparency in publishing judgments.

This judgment was later removed from Bailii.

In my parents’ case, he withheld publication of the judgment, despite having made multiple amendments to the terms of the bonds. 

He continued to withhold publication for nearly 3 years.

During the appeal process, he breached statutory procedures by failing to respond to 3 separate interim applications.

He refused to respond to an application for a wasted costs hearing, to address conflicting legal opinion given to the Court.

He breached statutory appeal procedures by moving my appeal to higher courts, claiming to be seeking permission to appeal on my behalf – when he himself had refused permission.

He did not declare his past and ongoing commercial interests with all the legal professionals involved in the case.

He did not declare that he and the deputy had been involved in completing a commercial law book at the time of events in my claim.

He did not declare this involvement at any time.

He did not declare he was Patron of Solicitors for the Elderly, when I first accused them of covering up for the deputy.

He allowed the case to proceed on a false premise, to avoid addressing the overwhelming evidence against his colleague.

Mr Justice Mann was unconcerned by any of the above, and was himself unable to clarify the law on expiry of bonds.

He ignored evidence showing my parents’ bonds had been in force throughout COP proceedings.

Neither judge was willing to publish their own judgments, despite the significant impact of their rulings on all future claims.

They did not pass on their rulings to Aviva.

They did not pass on their rulings to the Ministry of Justice, who have responsibility for ensuring that the wording in the bonds is accurate.

They did not pass on their rulings to the Court’s 30,000 or so clients.

The end result is that there has never been a hearing of the claims in my parents’ case, nor has a single page of evidence been considered.

 

Legal ‘confusion’

For two years, 3 judges, the deputy, her practice, 5 solicitors and 2 barristers were unable to agree on the answer to a simple question, namely:

Before the MCA, could a claim be made against a bond after the client had died?

For 5 months (Jan- May 2010) District Judge Ralton proceeded as though my parents’ bonds were in force.

For 6 months (Jul – Dec 2010) Judge Lush proceeded as though they were in force.

In March 2012 the deputy and her practice confirmed they remained in force.

In March 2012 their first barrister (Judge Lush’s co-editor of legal books on COP rules) confirmed they were in force.

In Dec 2012 the deputy’s second barrister dismissed all previous legal opinion, claiming pre-MCA bonds were cancelled shortly after the deputy ceased acting for a client.

Judge Lush believed her.

The junior barrister claimed she had been ‘unable to contact Marsh’ to confirm the rules on expiry.

Judge Lush did not keep his promise to contact Marsh after the hearing, to check on these. 

‘Somebody’ contacted Marsh the day after the hearing - claiming the bonds should have been cancelled in 2006.  Whoever it was – whether the deputy’s legal team or the Court of Protection – they did not ask Marsh to confirm the rules on expiry.

In his judgment, Judge Lush claimed it was ‘not necessary’ for him to explain the difference between pre- and post-MCA rules, despite the obvious ‘confusion’ between all the legal experts, including himself. 

He did not explain why – in his view – post-MCA bonds gave Executors 7 years to raise a claim, while pre-MCA bonds gave them no time at all.

When I made a formal application for a wasted costs hearing on the grounds that I had been misled over the status of the bonds, Judge Lush ignored my application, and all subsequent requests for a hearing.  

When I appealed on the grounds that he was mistaken over the rules, he maintained his position and refused permission to appeal.

On the same day, he issued a judgment in another case (since removed from Bailii), in which he confirmed it was ’normal practice’ for Executors to be able to claim on a bond. 

He did not query why the first barrister (his co-editor) had considered the bonds to be in force, nor ask the deputy to confirm their correct status

Alan Eccles, Public Guardian, claimed it was ‘a well-established fact’ that Executors could claim on pre-MCA bonds, but later gave conflicting advice over these rules.   

He was unable to confirm the expiry dates of my parents’ bonds, was unaware that the OPG had lapsed the bonds even as we were communicating and did not appear to understand what is meant by ‘historic’ bonds.

Mr Justice Mann was unable to clarify the rules on expiry for the court, although he commented that it would ‘have been an extraordinary state of affairs’ if Judge Lush’s interpretation of the rules was correct.

He made no comment about Judge Lush’s refusal to hold a wasted costs hearing and ignored evidence showing that the bonds had been in force all along.

It cannot be said that the above ‘chaotic’ legal opinion among so many leading COP experts provided a sound basis for a hearing, or placed me on an ‘even playing field’ in the courtroom, a key objective in furthering the overriding objective to ‘deal with cases justly.’ It is beyond absurd, that an Executrix should have to go through 2 years of legal proceedings in order to establish something as basic as the expiry date of a bond, and that the case ended with 3 judges still unable to clarify this point in law.
Transcripts of hearings at COP and Chancery Division    
Judgments, Jan 2013 and November 2013
Para 77, Judgment re.
Joan Treadwell deceased, July 2013
Overriding objective, Court of Protection Rules 2007
Correspondence with Public Guardian (March – October 2013)

 


At a conference in 2011, Judge Lush had confirmed that there were more than ‘32,000 historic bonds in force, where security had yet to be discharged.’ Therefore, long before hearing my parents’ case, he was fully aware that historic bonds remain in force to allow for a claim. My parents’ bonds had been among the ‘32,000 historic bonds’ quoted in his speech.
Conference, 2011

 

LEGACY OF CASE

Despite its defamatory nature, I pressed for publication of my parents’ judgment for the benefit of the court’s 30,000 or so clients, who are entitled to know the terms of their compulsory insurance.  My unique experience had placed me in a strong position to challenge the effectiveness of a product which rarely pays out in claims against professional deputies, and whose wording is wholly misleading. The Court’s initial reluctance to publish the judgment is of concern, but even more worrying is the fact that for 3 years it has continued to keep its clients ‘in the dark’ over key changes to their policies.  The judgments were issued, therefore the rulings must stand.  The Court cannot continue to ‘pretend’ the case never happened.                                                                                                                                            
Formal application for publication/Response, 2015


The Court’s decision - to withhold details of over 200 judgments involving successful claims against lay deputies - has ensured that the bond remains a poorly understood product, when the opposite should be true.  Most insurance documents are highly specific and leave policy holders in no doubt as to exemptions and circumstances which are not covered under the terms of the policy. Withholding (if not, destroying) so many judgments over such a long period only serves to undermine confidence in the court’s ability to oversee a commercial product.

Judge Lush himself has stressed that COP decisions should be open to scrutiny, yet it is impossible to scrutinise a judgment which does not say anything meaningful.  One which focusses solely on besmirching the claimant, contains a flawed analysis of the law, adjudicates on the wrong matter, does not address the claims and ignores all evidence, has no value and serves no purpose in enlightening others on how decisions have been reached.   This, along with the Court’s reluctance to pass on its own rulings and the paucity of successful claims against professional deputies’ bonds,  combine to form an impression that professional deputies known to the court may have been ‘let off the hook’ in the past.    Certainly, it would explain why so few have had their bonds forfeited in the 20 years that Judge Lush has been in charge of the court.
Judgments, Jan and July 2013

 

Summary of ‘non-claimable’ losses

The following is a summary of all claims rejected by Judge Lush, and later on appeal, by Mr Justice Mann.  Therefore, all must now be classified as ‘non-claimable’ losses under the bonds:

Losses incurred in challenging an abusive Bill of Costs.

Losses caused by a deputy claiming Fixed Costs, disallowed by the SCCO.

Interest lost on moneys charged inappropriately by a deputy/their practice.

Losses caused through charges for non-fiduciary duties and for conducting a personal vendetta against a complainant

Losses caused by a deputy’s failure to comply with mandatory rules.

Losses caused by a deputy’s failure to comply with court instructions (to market a client’s property and to prepare a Declaration of Trust).

Interest lost on a pension allowance which a deputy fails to claim. 

Losses caused through raising multiple complaints about a deputy’s conduct.

Losses caused through a deputy’s failure to declare all accounts belong to a client, and to account for moneys withdrawn from these.
Transcripts COP hearing, Dec 2012, Chancery Division Hearing, Nov 2013
Judgments, Jan 2013 and Nov 2013

 

New ‘condition’

Judge Lush has also introduced a new ‘dimension’ to claiming against the bonds.   In his judgment, he stated:  The PGO...in December 2005…acted as the gatekeeper with regard to Mrs Tricker’s request to enforce the security…it looked at her complaint, considered the matters that it was required to consider, directed itself properly as to the law, and came to an even-handed conclusion.  Its decision not to call in the bonds….was a reasonable exercise of its discretion.’ Here, he is clearly stating that a past decision taken by clerical officers is sufficient to decide a claim against a bond some 6 years later, even when evidence and new issues have come to light in the intervening years.
Paras 57, 63 Judgment, Jan 2013 – Bailii website


Bestowing retrospective powers on clerical officers to hear contentious claims is a huge departure from current law, yet the Court has again been unwilling to make this decision public.  A judge cannot change the law retrospectively in order to suit one case, and then ‘change it back again’ as soon as the case is over.  My parents were owed the same protection under the law as all other COP clients and if a Court is to change the law for one, it changes the law for all.   Yet, 3 years later, clients have still not been advised that, following Judge Lush’s ruling, clerical officers can hear contentious claims.

In refusing permission to appeal, Mr Justice Mann has effectively sanctioned this change in the law.  In my grounds for appeal, I had claimed that no court had ever ruled on any of my claims.  In his judgment, Judge Lush relied on the fact that a clerical officer had looked into some of my claims in 2006.  His failure to report the officer’s findings or consider a single page of evidence in his judgment meant that those claims were determined by an officer with no judicial powers. The bond says only the Court can decide whether to call in a bond, yet both Judge Lush and Mr Justice Mann have accepted that a clerical officer can also do this. 

COP clients’ representatives also need to be informed that claiming for the ‘wrong type’ of loss could result in them being held personally accountable for all costs in a case - even if their claim falls within with the bond’s stated terms and conditions.                                                          
Para 63, Judgment, January 2013

 

REQUESTS FOR TRANSPARENCY

Given the Court’s reluctance to inform clients of the above amendments to their bonds, I raised concerns with various authorities and those in positions of authority within the Court of Protection ‘system’.  These are listed below:


Sir James Munby, President of the Court of Protection.
I wrote twice (by Recorded Delivery), asking whether he would be notifying clients of amendments and exemptions to their insurance, as decided by Judge Lush and Mr Justice Mann.  In particular, I asked whether the court would be informing clients that the costs of challenging an abusive bill are not ‘claimable’ under the bonds, and that a judge does not have to hear evidence in a claim against a professional deputy,  if clerical officers have previously dismissed a similar complaint.  To the first letter, I received a curt reply from a member of his office, saying Sir James could not comment on decisions made by other judges.   The matter of notifying the court’s clients of amendments to their insurance was ignored.

My second letter (of 19 January) - repeating my request for transparency in relaying these amendments to the Court’s clients – was ignored.
Letters to Sir James Munby, President, Court of Protection                                                     
Reply on behalf of Sir James Munby


Petition to House of Commons.
   A few years ago - in 2012 - I had petitioned parliament over the lack of input from the OPG and relatives, prior to assessment of a professional deputy’s Bill of Costs.   As those close to the client and those supervising the deputy have no sight of the bill before it is assessed, the only time a carer or relative can challenge a bill is after the client has died and they assume responsibility for their affairs.  This means that the client cannot benefit from any refunded amount during their lifetime.  A senior Policy Officer at the MOJ promised to look into this matter when issues involving the Court of Protection were next raised.  However, she did not keep her promise, despite a lengthy consideration of Court of Protection practice in 2013 by a House of Lords Select Committee.  She has still not honoured her promise.
House of Commons Hansard written answers – 21 March 2012                                   
Correspondence to/from Joan Golbourn, Access to Justice Dept, MOJ                        


MPs.
  In September 2014 I wrote to every MP in the country, highlighting the ‘secrecy’ surrounding surety bonds and expressing my concerns that they rarely paid out in claims against professional deputies.  I received around 400 replies, many of which expressed similar concerns over the lack of transparency in the Court of Protection. 

Protocol dictates that only a constituent’s own MP can raise issues on their behalf.  However, my MP -  Dr Therese Coffey - refused to assist and expressed no concerns over this ongoing injustice to thousands of vulnerable clients.
Mailing to MPs, Sep 2014                                                                                                                   
Email – Dr. T. Coffey


Ministry of Justice.
  In April 2015 I sent 487 pages of information on surety bonds to the MOJ, having been assured that the then Minister of State for Justice, Simon Hughes, would consider this evidence.  When he lost his seat in the 2015 election, I heard nothing more, and it took some time to track down these papers.  I discovered they had been passed to a senior Policy Officer in the MOJ’s Access to Justice Department, who promised to consider them.  (Coincidentally, this was the same officer who had promised to look into issues over how Bills of Costs are assessed, but had reneged on her promise).  Eventually 1 received a one line response from an untitled clerk in her office, claiming the MOJ ‘had no plans to make any changes to the bond scheme at present.’  My concerns - that the bond did not fulfil the definition of a ‘first demand bond’ and contained misleading terms and conditions - were ignored.  Three separate requests to her department for the return of my papers were ignored.

Even if the MOJ had been unaware of Judge Lush’s/Mr Justice Mann’s rulings in 2013, from April 2015 onwards they were fully aware of amendments to the bond’s terms and conditions resulting from their judgments.  It is my understanding that the MOJ are responsible for ensuring that the wording in the bonds remains appropriate and does not mislead clients in any way, yet  they have still not amended the wording to reflect the judges’ decisions.  Therefore, in continuing to issue bonds on a false premise, they are – in my view   mis-selling the product to thousands of vulnerable clients each year.

My papers were eventually returned at the end of May.  Somewhat cynically, the Senior Policy Officer wrote: ‘I refer to your recent correspondence with the Office of the Public Guardian and… now enclose your bundle of papers relating to security bonds.’  Her letter is deliberately misleading, since I had not written to the OPG, but to Simon Hughes and herself at the Ministry of Justice.  And my ‘recent correspondence’ related to requests sent to herself more than a year ago.                                                                                               
Correspondence to/from Access to Justice Dept (Joan Golbourn)                                                       
Bundle of information on Surety Bonds                                                                                            

On a separate note, I had reason to suspect that I may be on a ‘black list’ for exposing ‘irregularities’ in this compulsory insurance.  I therefore made a Subject Access Request under the Data Protection Act to the Ministry of Justice, requesting details of any documents/communications in which I was mentioned.  Although I had proof that my letter was received, the MOJ ignored my request.                                        
Subject Access Request to MOJ

I reported their failure to comply with the law to the Information Commissioner, who investigated and replied:  ‘The MOJ has not met its obligations under the sixth data protection principle.  We have recommended that the MOJ contact you and provide an expected timescale for responding to the SAR.’  They also wrote that, in the absence of a response, I ‘had the right to take the matter to court.’  However, the MOJ ignored the Information Commissioner’s recommendations and once again did not respond to my request.  One cannot be expected to have respect for the law, when the Ministry of Justice itself shows contempt for it.                                                                                            
Correspondence to/from Information Commissioner


Dominic Raab MP, Parliamentary Under Secretary of State for Justice.
Last year (15 July) I wrote to Simon Hughes’ successor, Dominic Raab MP, over the lack of transparency in relaying amendments to the terms and conditions of surety bonds sold to COP clients.  As Minister with responsibility for transparency, he appeared to be the obvious person to look into such matters.  He did not reply.

On 5 January I wrote again. This time my letter was passed to HMCTS, who eventually replied on his behalf, repeating they had no plans to change the bond scheme.  My concern - over the Court’s lack of transparency in notifying clients of key amendments to their bonds – was once again ignored.  Mr Raab himself has shown no interest in the subject.
Correspondence to/from MOJ (C. Worsley)


Shailesh Vara MP, Parliamentary Under Secretary of State and Minister for the Courts.
  On 15 July last year I wrote to Mr Vara, asking if the Court of Protection had special dispensation to ignore court applications and breach statutory appeal procedures, in view of the fact that one (curious) rule of the court is that it ‘can dispense with any rule.’   HMCTS responded with the suggestion that I should contact my local Citizens Advice Bureau.

I wrote again, asking for clarification of the above rules.  Eventually, in Feb 2016, I received a response from HMCTS, saying:  No, the court does not have special dispensation to change statutory appeal procedures’ and confirming that the Court must comply with statutory rules in responding to applications.  This confirmed that Judge Lush had no discretion to breach statutory procedures in my parents’ case.  Ignoring 3 urgent applications and changing the appeal procedure was an abuse of his authority.
Correspondence to/from HMCTS


Judicial Conduct Investigations Office.
  I have twice raised complaints with the JCIO.  The first time I complained that Judge Lush should have recused himself from hearing the case, in view of his commercial interests with the deputy at the time of events in my claim.   Unaccountably, the JCIO focussed instead on his commercial connection with the Chair of Solicitors for the Elderly.

The second time, having acquired substantial evidence, I accused Judge Lush and Mr Justice Mann of colluding in shutting the case down.  However, the JCIO cannot investigate judicial decisions or case management.  The only method of challenging a judge’s management of a case is through the appeal procedure, but if the judge to whom one appeals is himself unconcerned by multiple irregularities in the lower court and breaches of statutory procedures, the litigant has no way of advancing their complaint.

The JCIO advised that, if I considered the judges had acted unlawfully, I should contact the police.  However, the police take a similar view to the JCIO, in that they do not automatically investigate complaints against the judiciary and will only take the matter further if a second judge has leant some credibility to a complaint by criticising the first judge.  Since I was claiming that both judges had wilfully shut the case down, I was left with an impossible ‘mountain to climb’ in terms of getting the police to investigate my complaint. 

I understand that the police need more than just the complainant’s version of what happened in a case, and that they do not have the resources to investigate every ‘aggrieved’ litigant’s complaints.   However, without the safeguard of an independent investigating authority, it is virtually impossible for an outsider to challenge a judge’s handling of a case, even if it has been conducted dishonestly.  Given that there are around 35,000 members of the judiciary, it is doubtful that all behave in an exemplary manner at all times, yet the present system of holding judges to account for any dishonesty, appears to be woefully inadequate.  Presently, one can complain if a judge is sarcastic or discourteous to a litigant, but if he ‘breaks all the rules’ and neglects all his judicial obligations and duties,  he can do so with impunity unless a second judge is critical of his actions.
Complaint to JCIO/Response


Lord Dyson, Master of the Rolls.
   Last year I published a Case Summary of my experience as a Litigant in Person.  It is a factual chronology of my parents’ case, and cites evidence in some detail.  I sent a copy to Lord Dyson, stressing the ‘appalling’ treatment I had received at the Court of Protection.  He replied, saying he had  no comment’ to make on the matter.                                                                       
Letters to/from Master of the Rolls.

 


Alzheimers Society.
  Earlier this year I wrote to the CEO of the Alzheimers Society, explaining that I had spent many years trying to obtain justice not only for my parents, but for all Court of Protection clients, a large number of whom will have Alzheimers and other dementias.  I asked if he would alert members to new restrictions imposed on claims against surety bonds  - a subject covered on their website. I did not ask him to comment on the judicial aspects of my parents’ case.  I asked only that he relayed the court’s rulings, so that members of the Society were made aware of possible difficulties in making a claim.  This should have been of interest to him, since the rulings affect all those involved with mentally impaired clients – relatives, carers, Executors and all those currently acting as lay deputies.  The Society refused.                                                                                                      
Correspondence with Alzheiemers Society


Irrespective of the disinterest and apathy shown by others, one cannot alter the fact that judgments have been issued which have negated the bond’s ‘guarantee’ and amended its terms and conditions.  Ignoring facts does not make them go away.

 

AVIVA

For nearly 30 years Aviva (formerly Norwich Union) has been granted a virtual monopoly on providing bonds to COP clients, without the inconvenience and cost of having to market or sell the product directly.  Aviva is also entitled to recover any moneys paid out under the scheme by taking legal action against the defaulting deputies.

This places the company in a uniquely privileged position  Not only does it receive a guaranteed lucrative income through referrals from the Court of Protection, but it can reclaim the comparatively minor losses it incurs each year.  In addition, if claims against professional deputies succeed, on average, only once in every 7 years, Aviva again is the main beneficiary. 

However, with privilege comes responsibility and accountability.  Both the Court and Aviva have a duty to ensure that the wording in Aviva’s bonds does not mislead clients.  Once a judge has ruled in a case, any exemptions or amendments identified in his judgment should be communicated to clients. In this case, Judge Lush made definitive rulings on 7 different ‘types’ of claim, none of which had previously been reported.  He also introduced a new ‘condition’ and set a precedent in terms of ruling on whether the bond covers the costs of exposing a financially abusive bill.  His decisions, combined with the overturning of the bond’s status as a ‘first demand’ bond have changed the product irrevocably.  Yet, the Court’s clients have not been made aware of any of these changes.

In no other area of insurance would companies be allowed to sell a product which is subject to the whimsical and retrospective interpretations of one person in a secret court.   When that product is aimed solely at vulnerable clients, who cannot themselves raise objections or query its terms and conditions, it is even more important that it is defined in clear, unambiguous terms and does not purport to be something it is not.  Aviva have claimed they were not informed of Judge Lush’s rulings in 2013, and that it was for the Ministry of Justice and Court to correct any inappropriate wording in the bonds.  However, now that they have been made aware of the rulings in this case, it would appear they are perpetuating the mis-selling of this insurance.

I would argue that compelling clients to pay for a commercial product - knowing it does not fulfil its status as a ‘first demand’ bond nor even covers losses specified as claimable in its terms and conditions - amounts to fraud. 

Under the Fraud Act 2006, Section 4, a person is guilty of ‘Fraud by Abuse of Position’ if he:  occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, dishonestly abuses that position, and intends, by means of the abuse of that position— to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.

(2) A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.

Under this definition, it would appear that the Ministry of Justice and Court of Protection are committing fraud against vulnerable clients. For over 3 years, the Court of Protection has compelled clients to purchase this product under the false premise that it will pay for any loss, despite having ruled in 2013 that there are multiple exemptions to its ‘guarantee.’  In turn, the Ministry of Justice has failed to amend the bond’s wording to reflect the Court’s rulings, while Aviva has shown no interest in rectifying the matter of a product issued in their name, which clearly does not fulfil its purpose as a ‘first demand’ bond.                                                                                   
Legislation.gov.uk: Fraud Act 2006


In a judgment issued in April 2014, Mr Justice Hodge wrote:  ‘It is said by the Official Solicitor that failure by the court to call in the security bond would denude the incapacitous person of the protection which Parliament, the Office of the Public Guardian and the court intended him to have, which is implicit in the security system itself.’  Yet, this is what precisely what happened to my parents.  Their insurance, with its unambiguous ’guarantee’ and wide-ranging coverage, turned out to be nothing more than a meaningless piece of paper.

Marsh Brokers.  I complained that my parents had been mis-sold a bond whose ‘guarantee’ and terms were inaccurate and misleading. I listed my claims and the rulings by Judge Lush and Mr Justice Mann.  Marsh promised to investigate ‘all the issues’ I had raised, but after a 7 week ‘investigation’, they simply concluded that my dispute was with the Court and Aviva.  All the issues I had raised were ignored.                                                                           
Complaint to Marsh/Final Response


Aviva.
  Unlike all other policyholders, the Personal Representatives of COP clients are not able to speak to Aviva directly.  Aviva’s website makes no mention of the bespoke bond scheme for Court of Protection clients, and there is no advertised dedicated team to contact in the event of a query.  When, for 3 days,  Marsh were unable  to provide me with contact details for the ‘bond’ department at Aviva, I wrote to the CEO on 18 April (by Recorded Delivery) raising a formal complaint over the misleading ‘guarantee’ in my parents’ bonds.   Five weeks later, I had not even received an acknowledgment.  (Aviva guarantee to acknowledge a complaint ‘within 5 days.’)

I telephoned Aviva and was promised a call back, but nobody called. I called again, and was eventually put in touch with a senior underwriter. He claimed the CEO had held on to my complaint for 5 weeks, and that he had only just received details of it himself. He said the wording in the bond was outside Aviva's control and that all responsibility for its accuracy lay with the Ministry of Justice. (He said the MOJ had last reviewed the wording in 2014, and were due to do so again this year). He claimed Aviva simply provided the financial resource to pay out any moneys ordered by the Court. He praised the court's expertise and implied that I was simply someone who had 'lost' a case.

He promised to provide a full response to all questions raised in my complaint, but did not do so. I was then promised a full response by a Senior Customer Care Manager working with the CEO. When he failed to respond by the agreed date, I telephoned him and was emailed a copy of his response. This ignored all the questions raised in my complaint and focussed instead on telling me how the bonds operate (something I already know). He claimed the bond is 'a legally valid contract between Aviva, the Court of Protection, the Office of the Public Guardian and the Deputy'. However, the OPG itself states: 'Neither the OPG or the Court are party to the bond, which is between the deputy and the bond provider.'

Instead of confirming whether COP bonds meet the definition of a 'first demand' bond, he wrote: 'As you were not a party to the contract…we are unable to provide any further comment on this matter.' His letter contained no address and no details of the next stage in the complaints procedure (The Financial Ombudsman). In common with similar letters I have received from authority figures, he did not refer to my complaint or the date on which it had been sent, and anyone reading the letter would assume I had called him to have a general discussion on the bonds.

His response shows Aviva is unable (or unwilling) to clarify the status of a surety bond, even to customers who have paid for them. As my parents' legal representative, I was acting on their behalf, yet Aviva considered I had no right to know what my parents had paid for.

It is of huge concern that Aviva has refused to answer this fundamental question.
Response from Customer Care Manager
OPG Practice Note: Surety Bonds March 2012
         

Update: Tokio Marine HCC confirmed that their bond document contains no exemptions, despite a Court ruling in 2013 citing numerous losses which are not claimable.

QUESTIONS

My parents’ case raises some very serious questions.  While judicial independence prevents anyone from challenging a judicial decision other than through the appeal process, it does not prevent them questioning why those decisions have been withheld from those most affected by them.  As has been shown, this was not simply a case between two vulnerable clients and their deputy.  The rulings have affected the terms of a commercial product and are therefore of interest to all the Court’s clients and their representatives, including those managing the estates of clients who have died and whose bonds remain in force.  In total, they affect more than 50,000 bonds, and every one of those bonds is now subject to the new terms and conditions.  In my experience it is the questions no one is prepared to answer which shed the most light on a situation.  Some of these ‘difficult’ questions follow.

Initially, District Judge Ralton refused my claim on the grounds that my parents had died some years ago, that the OPG had provided no supporting evidence and that remedies existed in other courts.                                                                                     
Why was he unaware that the OPG’s jurisdiction over a client’s affairs ceases when the client dies? 

Why should the fact that my parents died some years ago prevent a claim against their bonds?

Why did he allow the case to proceed if, according to Judge Lush, all pre-MCA bonds were cancelled almost as soon as a deputy stopped acting for their client?

Why did he not address the individual claims or consider a single page of evidence?


Neither Judge Lush nor Mr Justice Mann was able to clarify a simple rule covering the cancellation of pre-MCA surety bonds.
Why not? What was so difficult to understand?

Why did they not seek expert advice from Marsh/Deputy Bond Services/Aviva?

Why did Judge Lush not believe his co-editor of law books on COP practice, who had given an accurate explanation of the law?

Why did he believe a junior barrister, whose explanation of the rules made no sense?

Why did he ignore an application for a wasted costs hearing, when so many legal experts had been ‘confused’ over the rules?

Why did he fail to criticise the deputy for hiring 2 barristers to give conflicting legal opinion to the court?

Why did he not ask the deputy to confirm the status of her own bonds?

Why did he not research the law before the hearing?

Why did he and Judge Ralton make identical mistakes in believing the bonds to be in force?

Why did it take the intervention of a junior barrister before Judge Lush was able to ‘remember’ the rules?

Why did he not apologise for his error in asking the parties to prepare for/attend a hearing unnecessarily?

Why were my parents singled out from more than 30,000 other clients, to have their bonds prematurely cancelled?

Why did Mr Justice Mann ignore evidence from Marsh, showing that my parents’ bonds had been in force all along?


Judge Lush was on a salary of around £130,000 p.a.   He was paid to understand the law and to bring a knowledge of this to a hearing.  He had time to engage in multiple commercial projects, but could not spare a few minutes to establish the answer to a simple question.  For one year he was unable to answer this question - before, during and after the hearing, and again when I appealed.                                                                       
Why  was he unable to carry out a basic judicial duty?


I had appealed his decision on the basis that he was mistaken over the rules on cancellation of pre-MCA bonds.   I claimed that all bonds remained in force after the client had died, to allow for a claim.  Yet, on the same day that he refused permission for me to appeal on these grounds, he issued a judgment in another case, saying:
 Normally, the personal representatives would make an application to call in a security bond after the death of the person to whom the proceeding related.
Why, on the same day, did he give two conflicting opinions on the same simple rule?

Why, in 2011, did he confirm there were more than 32,000 historic bonds which had yet to be discharged by the Court?

What did he believe was meant by the term historic?

Why was he unaware that bonds remained in force for 7 years after the client dies, as confirmed by HH Hazel Marshall) in para 39 of her judgment dated Oct 2009?


The bond has been described by a High Court Judge and by Judge Lush as a ‘first demand’ bond, yet it does not pay out against all losses.
Why has the Court not advised clients of exemptions and amendments to the bond’s terms and conditions, as decided by Judges Lush and Mann?

Why has it not advised clients that the costs of exposing a financially abusive bill do not count as ‘claimable losses’ under the bonds?

Why has it not advised clients that a claim for forfeiture does not have to be considered by a judge, if clerical officers have previously looked into similar complaints about the deputy? 

Given that both judges have made multiple rulings on claims against the bonds, why have these not been reported?

Why has there been a lack of transparency in this case?


The bonds guarantee to cover losses caused by a deputy’s failure to carry out their duties, to comply with court instructions and to claim all pension allowances.  My claim included losses incurred as a result of all these failures, yet Judge Lush dismissed them all without explanation.                                                                                                                         
Why has the Court failed to advise clients that losses caused by the above failures are no longer ‘claimable’?

Why has the MOJ failed to delete clauses relating to these failures from the bond document?

Why was Judge Lush unable to explain why losses incurred by these failures differ from other losses?

Why does Judge Lush’s judgment contain no mention of these individual claims?

As arguably, the country’s leading expert in COP practice, why was Judge Lush unable to clarify why such claims are invalid, when Mr Justice Mann was able to do this?

Why are clients made to pay for a second insurance, when – according to Judges Ralton and Mann – claims for certain losses should be made against a deputy’s professional indemnity insurance, rather than the bond?


Judges Lush and Mann have both ruled that the bond does not cover losses incurred through challenging a deputy’s financially abusive bill.  Their rulings have set a precedent, yet this precedent has not been communicated to COP clients.                                           
Why has this important exemption been kept secret? 

Why are vulnerable clients being denied the same rights as all other solicitors’ clients who have been overcharged?


In a judgment issued by Judge Lush in July 2012, he wrote that a fiduciary ‘is expected to keep and be constantly ready to produce correct accounts of all their dealings and transactions’.  Yet, my parents’ deputy failed to declare 4 accounts belonging to my parents and was unable to account for moneys withdrawn from these during her tenure.  She has still not accounted for these moneys.                                                                                    
Why were Judges Lush and Mann unconcerned by this serious failure?

Why do their judgments contain no mention of this matter?


My application had not included a claim for losses caused by the deputy’s unreasonable delay in paying some urgently needed expenses.  Yet Judge Lush focussed almost exclusively on this irrelevant matter.                                                                                                               
Why did he believe I had claimed for this?

How did he and the junior barrister make the same ‘mistake’ in mis-reading my application?

Why did he focus on this irrelevant matter, yet ignore the 7 claims in my application?


Judge Lush has effectively ruled that clerical officers can decide a contentious claim for forfeiture of a bond. His decision has retrospectively overturned past and present law, and goes against the wording in the bond document, which claims that only the Court can order forfeiture of a bond.                                                                                                                    
Why has the Court failed to advise clients of this new ‘condition’ to the terms of their insurance?

Why has the Court failed to amend Court of Protection rules to reflect this change in the law?

In his judgment, Judge Lush quoted in full a report by Solicitors for the Elderly (a non-regulatory organisation) into some complaints I had raised about the deputy. Why did he quote from this irrelevant report, rather than from the PGO ’s report, upon which his judgment relied?

Why did he ignore evidence from the Public Guardian, confirming that no formal investigation had been carried out by the PGO?

Why did he ignore evidence (from the deputy) showing that the clerical officer - who claimed to have investigated my claims and presented them to the Court - had deceived me over this matter?

Why did Mr Justice Mann have nothing to say on this?

Why was he not concerned by Judge Lush’s retrospective bestowal of authority on clerical officers to hear contentious claims?


Although largely unconnected to my claim for forfeiture, SFE’s report had upheld two of my present claims against the bonds.  Yet, Judge Lush dismissed both these claims without any explanation.                                                                                                                                 
Why did he include a report upholding 2 of my claims, if only to ignore its findings?

Why did he ignore evidence in the bundles, showing that all complaints considered by SFE were later shown to be justified?

Why did he consider that a report whose conclusions were based solely on an interview with the deputy and without sight of her files, constituted a fair and reasonable investigation?

Why was he unconcerned by SFE’s ‘conflicting’ conclusions into the same complaint?


In a judgment against a lay deputy he devoted 12 pages to considering evidence.  In my parents’ judgment, he did not consider a single page of the evidence he had ordered me to produce (556 pages in total).                                                                                                                   
Why was he reluctant to consider evidence taken from the deputy’s files and other third party sources?

Why would he order me to produce evidence, if only to ignore it?

Was it the case that the evidence was so compelling, he did not want ‘to go there?’


In the above judgment against a lay deputy, he stressed the importance of publishing judgments, in order to enhance ‘consistency’ and ‘accountability’, and to inform the public on how the Court reaches its decisions.                                                                                                
Why, therefore, was this judgment later removed from public view?

Why, in my parents’ case, was he reluctant to act in the same transparent manner, particularly since I was painted as the ‘guilty party’?


During COP proceedings Judge Lush ignored 3 separate urgent applications. Under the law, I was entitled to receive a written response to each of these.
As the Court’s senior judge - responsible for ‘overseeing and directing the work of the Court’ - why did Judge Lush breach statutory procedures?   

Why was he not accountable for his malpractice?        

Why did Mr Justice Mann ignore these irregularities?

Why, in particular, was he not concerned by Judge Lush’s failure to respond to a wasted costs application?


HMCTS confirmed that the Court of Protection has no special dispensation to change statutory appeal procedures.
Why did Judge Lush move selected papers from my appeal to judges in other courts before reaching his decision on whether to grant/refuse permission to appeal?

Why was he unable to explain his reasons for doing this? 

Why did he forward my papers to Chancery Division 3 weeks before refusing permission to appeal, claiming he was ‘waiting to hear‘ from them?

Why did he initially nominate Justices Proudman or Norris to hear my appeal?

Why did a Team Leader in the Court’s Appeals & Listings Dept write to me 3 weeks after Judge Lush had refused permission to appeal, advising that he was sending my appeal papers to Chancery Division that day, and asking for permission to appeal Judge Lush’s Order? Was he not aware that an appeal to Chancery Division had to come from myself and within 3 weeks of Judge Lush’s decision?

Why would Judge Lush want to pay my fee and apply to Chancery Division on my behalf - to appeal a decision he himself had refused?

Why did Mr Justice Mann find these breaches of appeal procedures acceptable?

Why did the Court Manager not respond to any of my complaints about these irregularities, and did not appear to know I had complained?


The Court (apparently) ‘lost’ all my appeal papers between 2 court buildings.                                 
Why was it unwilling to reimburse me for these papers?

Why did it not claim against the courier?


When I appealed Judge Lush’s judgment, Mr Justice Mann refused permission to appeal on all grounds.
Why was he unconcerned by multiple and significant irregularities in the lower court, viz. Judge Lush’s error over the law on cancellation of bonds, his refusal to hold a wasted costs hearing, his failure to respond to 3 urgent applications, his breach of appeal procedures, his misconception that clerical officers have authority to rule on contentious matters, his adjudication on the wrong matter and his failure to address a single page of evidence?


Judge Lush failed to declare his commercial interests with all the legal professionals involved in the case, including the deputy herself.   At the same time I have claimed she was neglecting my parents’ affairs, he had distracted her from urgent fiduciary duties by asking her to help him complete a commercial law book.                                                                     
Why did he not declare any of these commercial interests? 

Why did he not declare his commercial involvement with the deputy at the time of events in my claim?

Had the hearing taken place contemporaneously, would he not have been bound to declare a current commercial interest with the deputy?

Why did he not declare his past and ongoing commercial interests with the Chair of SFE, whose report featured prominently in his judgment?

Why did he not recuse himself from hearing the case?


Judge Lush ruled it is not ‘fraud’ to charge for non-fee earning secretaries, while calling them Legal Executives.
Why does this not meet the definition of fraud?

Why did he consider it acceptable for a practice to charge for non-fee earners under a false title? 

Why was he unconcerned by an experienced deputy who overcharged her clients by £6,000?


During COP proceedings it came to light that Solicitors for the Elderly (of whom Judge Lush is Patron) had issued 2 conflicting reports into my early complaints.  He ruled it was not ‘covering up’ to issue two opposite conclusions into the same complaint.
Why do such actions not amount to covering up?  Would a judge be allowed to issue 2 conflicting judgments in the same case?

Why did he not declare he was Patron of Solicitors for the Elderly during the hearing, when I claimed SFE had ‘covered up’ for the deputy? 


The deputy, her practice and Judge Lush were unable to produce any evidence to show that I had deceived the Court and or that any of my claims were unjustified.  Instead, all relied on making defamatory comments about me as their only ‘defence.’  The former Public Guardian (Martin John) claimed that engaging in a personal vendetta and focussing solely on this, is a ‘sign’ that deputies could be covering up for their own negligence.                                                                                                                                 
Why would Judge Lush choose to participate in the deputy’s vendetta, rather than demonstrate my claims were unfounded, through proper consideration of the evidence?

Why would he go to such extraordinary lengths to exonerate a deputy, if she was not a close colleague/friend?

Why did he consider that the deputy – who had breached every fiduciary duty – was more worthy of his ‘protection’ than my innocent parents?


I had acted in my parents’ best interests at all times and tried to protect them from a negligent deputy.  Yet, I was ‘punished’ and insulted for bringing the claim to court, and for claiming for losses guaranteed as  ‘claimable’ under the terms of the bonds.
Why would a judge be scornful of a carer/daughter, for acting in her parents’ best interests?

Why did he ‘punish’ me for believing the wording in the bonds?

Why did he victimise me for complaining, yet fail to consider my complaints?

Why did he employ the playground tactic of name-calling, rather than carry out his judicial duty in an honest and professional manner?


Human Rights legislation states that everyone has the right to a ‘full and fair hearing.’                  
Given the court’s remit to protect the vulnerable, why did its senior judge discriminate against 2 vulnerable clients by cancelling their bonds prematurely and refusing to consider evidence?


Judge Lush was reluctant to publish his own judgment in my parents’ case.   Despite his avowed commitment to transparency, it took over 2 years of pressure from myself and the introduction of new rules on transparency, before he agreed to this.
Given the significance of his rulings on the terms of the bonds, why would he want to hide his own judgment from the public?

Given that this was a ‘test case’ concerning previously untested claims against a professional deputy, why did he consider his decisions were best kept secret?

Why was his judgment - stressing the importance of publishing judgments - later removed from Bailii? 

Why did Judge Lush not advise Aviva of his rulings in 2013?

Why has the Ministry of Justice and Court of Protection continued to ’sell’ the bonds in their present format, knowing that their terms were amended in 2013?

Why has Aviva shown no concern over misleading documents issued in their name?


Prior to publication of my parents’ judgment, the Court had withheld all judgments involving claims against professional deputies’ bonds.
Why did the Court only publish judgments against lay deputies?

Given the dearth of case law involving claims for forfeiture, why has the Court withheld nearly 200 judgments involving successful claims against lay deputies’ bonds? 

Was it the case that all the claims were identical and therefore of no interest to the public and legal practitioners?

Why has the Court failed to publish any case law involving the bonds prior to 2007?

Was it that some of these cases involved claims brought by Executors, heard by Judge Lush himself?

Why has it not published the judgment in 2010, in which all 10 bonds of a professional deputy were forfeited by the Court?

How are bond holders and their representatives to understand a product, when all information on it has been deliberately withheld for nearly 30 years?

Why has the Court never published any information or guidance on the bonds?

 


Surety bonds are issued in Aviva's name, and provide them with an annual 'guaranteed' income of at least £5 million.
Having been advised of changes to the bond's terms and conditions, as ruled upon by Judges Lush and Mann, why was Aviva's Chief Executive unconcerned by the now misleading wording in Aviva's bonds?

Why was he unable to confirm that a COP surety bond meets the definition of a 'first demand' bond?

Why was he unwilling to clarify the meaning of a 'first demand' bond?

Why did he not acknowledge my formal complaint?

Why was he unable to respond to questions raised in my complaint?

 


In continuing to withhold key information on amendments to the bond’s terms and conditions, the Court and Ministry of Justice are wilfully deceiving thousands of vulnerable clients.  Obtaining money by misrepresenting a product amounts to fraud.
Why have they continued to ‘sell’ an inappropriately worded commercial product to thousands of vulnerable clients? 

Would they themselves pay for a product whose terms can be changed retrospectively, and kept secret from clients for years?

Given our commitment to ‘open justice’ in this country, why are the Ministry of Justice, Court of Protection, Senior Judge Lush, Sir James Munby, Mr Justice Mann, Dominic Raab and Aviva still failing to advise COP clients of amendments to their bonds, as ruled upon in this case?

Why has the Ministry of Justice chosen to ‘cover up’ for a recalcitrant judge rather than defend the rights of the Court’s 30,000 clients?

 

CONCLUSION

I believe evidence should be allowed to speak for itself. I would never accuse anyone or any organisation of something malicious or unlawful unless I had incontrovertible evidence to support my claim.  In this case, it has taken me many years of research and careful analysis to arrive at an opinion, but I can now say with absolute certainty that my parents’ interests were of no concern to Judge Lush:  the case was conducted with the sole purpose of blocking a claim against his colleague.  No doubt, some will retain a naïve faith in his integrity, irrespective of the foregoing explanation, and will simply not believe that a judge in charge of a Court protecting the vulnerable could possibly act in such a manner.  Indeed, I myself took some time to accept what he had done.

In the courtroom I was bewildered by his apparent lack of knowledge on simple rules and his total lack of interest in the claims, evidence and anything I had to say.  But, it was his conduct afterwards that cemented my view that he had acted unlawfully.   His treatment of a Litigant in Person ‘broke every rule in the book’, and as time wore on it became more and more clear that, whatever I did, however much evidence I produced, the case would be shut down. 

I have always offered evidence to support my claims and statements, but in 10 years not one organisation - the PGO, OPG, Court of Protection or Solicitors Regulation Authority - has ever looked at any of it.   Judge Lush went further.  He not only ignored nearly 600 pages of evidence, but manipulated it to give a false impression to a reader.  It appears that, when presented with overwhelming evidence against his colleague, his only means of blocking the claim was to employ deception and defamation.   However, if one is to rely on maligning a claimant, one needs to show why their claims and complaints have no merit.  This, he was unable to do.  A judgment loses all credibility if it cannot address even one piece of evidence and focuses on anything but the application itself. It is unlike any other published judgment by him, and stands out as a woefully inadequate and flawed document for someone of his undoubted intelligence.

During the course of this case I was advised by the JCIO that a judge is entitled to form an opinion of a litigant.  Judge Lush’s opinion of myself is that I am ‘sinister’ and ‘dark’’ and complain all the time for no reason (He also claimed that I tried to 'wreck the deputy's career', although I never asked for her to be 'struck off.' All I did was to stick up for my parents, whenever she let them down)By the same token, I am allowed to form an opinion of Judge Lush, and in my view, he is both amoral and judicially corrupt.  I use the word ‘corrupt’, because not only was he prepared to violate the terms of a commercial product in order to save a colleague potential losses of over £20,000, but was also prepared to obtain substantial pay outs for several more close colleagues by ordering me to pay their costs for one year – despite their collective dishonesty and feigned ‘confusion’ over the simplest of rules.   When I appealed, he consistently breached statutory procedures and was ultimately prepared to sacrifice the interests of some 50,000 vulnerable clients or their estates in order to get one negligent colleague ‘off the hook.’    I have been painted by Judge Lush as someone who has no grounds whatsoever for bringing a claim against his colleague, but where does he address any of the evidence?  Where does he itemise my claims and explain why they do not meet the terms of the bonds?   And why was he unable, for one year, to recall the simplest of rules?   Why too did he ‘forget’ to declare his commercial interests with all those involved in the case, including the deputy herself? 

If I am wrong, and the Court stands by his judgment, then why – for over three years – has it failed to notify clients of its impact on their insurance? 


Far from being the rather menacing figure portrayed by Judge Lush, I am open and honest, and have a proven track record in defending the rights of the disabled and their carers.  My husband and I have also spent many years voluntarily providing services for young adults with disabilities and those with mental health problems in our area. (See PASTEL, Suffolk).  At the same time I cared for our 4 sons, one of whom is severely disabled, and for both my parents with dementia. I even helped to carry out unpaid duties for the deputy, who was too busy to do the work herself. 

I feel I did my utmost to care for my parents and defend their interests during a serious financial crisis. But, I came up against an insurmountable barrier; an elite clique at the top of the Court of Protection ‘tree’, who were determined, at all costs, to protect a colleague rather than deliver justice to her clients.

My only expectation in asking the Court to appoint a deputy had been that she acted in a professional and responsible manner.  Yet, evidence taken from her files showed she had treated my parents and their financial affairs with contempt. When I attempted to find answers to various ‘discrepancies’, both she and her practice put up endless barriers to stop me discovering the truth, and when she was found to have seriously overcharged them in her Bill of Costs, neither she nor her practice felt the need to apologise.

I consider that if my parents had been able to represent themselves in court, their personal objections to the deputy’s conduct and her disregard for their financial affairs would never have been discounted by a judge.  Evidence would undoubtedly have been considered and the deputy would have been made to account for her actions. But, in their absence, it was easy for a judge operating in a closed court to ‘crush’ a relative raising the same objections.  

Judges are not gods.  And those with mental incapacities are equal members of society - entitled to the same respect and protection under the law, and the same rights as all other purchasers of financial products.  Yet, within Court of Protection circles not a single person or department has had the integrity, honesty or courage to stand up to a judge who thinks otherwise.

I have published this account to expose the current ‘scandalous situation’, in which thousands of vulnerable clients are being made to pay disproportionately high premiums for what appears to be an ineffective and deceptive product in terms of recovering losses caused by professional deputies. 

 

For years the press and others have been hinting at malpractice in the Court of Protection. Not only does my parents’ case offer compelling evidence of this, but it also entitles the press and public to ask perfectly legitimate questions, such as what - precisely - is covered under this costly and inscrutable insurance?  And, why, when the Court’s rulings were issued over 3 years ago, has it still not informed clients of important amendments to their insurance, as decided in this case?

There is no point in promoting a product as a ’powerful protective instrument’ if it cannot deliver on its promise.  Aside from major difficulties in acquiring evidence of a professional deputy’s negligence, the inadequate amount of time allowed for bringing  a claim and the discrimination involved in challenging a Bill of Costs, it is wholly unacceptable that decisions on a claim can be left to one man in a secret court, who cannot remember whether bonds remain in force, adjudicates on the wrong matter, changes the law retrospectively, ignores the claims, evidence and all court applications, is unconcerned by accounts from which moneys ‘went missing’, breaches statutory appeal procedures, punishes a claimant for believing the bond’s wording and keeps key rulings amending its terms and conditions from those who are forced for pay for the product.

I have been forced to accept Judge Lush’s dishonesty – since those in positions of authority have chosen to ‘turn a blind eye’ to it - and although my parents have been abused by the very people paid to protect them, I am still able to take an objective view and suggest ways of avoiding this ever happening again to other innocent clients. I would recommend that at least some of the following changes are made to ensure there is no repeat of what happened to my parents:


Until some of these measures are taken, I fear the current lamentable situation will continue, and many more vulnerable clients will be denied the justice they are owed and the protection they have paid for.

End



For full details of the case, see:
A Carer/Litigant in Person’s Case History’ Available on Amazon Kindle, or to download from:
www.litigantinperson.info.

N.B. Anyone reading this may be wondering what happened in relation to the substantial costs I was ordered to pay.  After the judgment was issued, I was disturbed by the collective inability of so many Court of Protection experts to agree on a simple rule, and by their common errors in misreading my application, manipulating evidence and focussing on irrelevant matters. Having established the close connections between all the legal professionals involved, I appealed Judge Lush’s decision on multiple grounds.  Among these, I accused the judge, the deputy and her legal team of dishonesty, deception and collusion.  The matter of costs was never raised again.

In July last year Senior Judge Lush retired. His retirement party was held by the same solicitors’ practice which had represented the deputy – a further indication of the close relationship between them. (The deputy herself was a former member of this practice).

The advert for his replacement described the position of Senior Judge as: ‘having day to day judicial oversight of the performance of the court including the allocation and listing of work, ensuring that, as far as possible, all cases are brought to a hearing with the minimum of delay…and orders are issued promptly.’ In respect of these duties Judge Lush had clearly been incompetent or dishonest in my parents’ case. He repeatedly failed to respond to applications and did not issue orders, even when I wrote to him asking for these.

Somewhat surprisingly, the same advert says: ‘This post does not require previous judicial experience.’ It is of concern that a position which gives the incumbent unfettered control over thousands of vulnerable people’s lives can be given to a solicitor with no previous judicial experience, particularly when decisions are made in a closed court and can be withheld from the public.

But perhaps the most alarming fact about the Court of Protection has been its history of imprisoning relatives who disagree with the Court on what constitutes a client’s best interests or breached one of its ‘gagging’ orders. The Daily Mail reported that hundreds have been incarcerated to date for displaying such ‘contempt.’ Which begs the question, why has the Court taken no action against myself - for divulging some of its secrets? The answer is simple. I have told the truth and nothing I say can be disproved. To publicise the case any further would open up a can of worms and risk exposing judicial misconduct at the highest level. It is for this reason that the Court prefers to ignore the case altogether, as though it never happened and the rulings were never made. My parents did nothing wrong, but were treated with utter contempt by the very people paid to protect them. After witnessing dishonesty on such a scale, it is impossible for me to have any faith in a judicial system, which I once considered to be among the best in the world.