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The Association of Law Costs Draftsmen, when responding to concerns about the recent changes being made to the membership structure and qualification requirements, stated:
“The rights which [the ALCD] will regulate include rights of audience and rights to provide legal services, and may in due course include the right to practise reserved legal activities. This means that the relevant test has to be one of competence, not excellence. The ALCD would be failing in its duty to entrants and the public if it were to set the bar so high that only a select few could clear it.”
The relevant test being “competence, not excellence” is clearly correct. The Bar does not expect junior barristers to have the skill and knowledge of a QC. Unfortunately, this test does no more than beg the question as to what amounts to “competence” for those acting in the field of legal costs.
The fact that a newly qualified solicitor or barrister may be “allowed” to handle a murder trial or a catastrophic clinical negligence brain injury claim does not mean they should. One would hope they would have the sense to turn the instructions down, on the basis of lack of experience, given the importance of the matter. The same should apply to costs (although whether those of us who work in this field have already disqualified ourselves, in terms of having “sense”, is another matter).
In fact, the examples of a murder trial or catastrophic injury are perhaps misleading. Those types of claim are immediately obvious to identify, as are their importance and potential complexities. (Barristers also have the benefit of a clerk to act as an initial filter for cases out of the barrister’s depth.)
The position in relation to those who work in the field of legal costs is less straightforward. The ALCD’s stated aim is to have its members able to “deal with the vast majority of costs disputes without the assistance of counsel”.
From the perspective of those who act for the receiving party, there appear to be four key elements to competence:
1. The ability to recognise, when instructed to deal with a new case, that there may be problems with the retainer. This has many potential strands:
i. If the CFA pre-dates the revocation of the Conditional Fee Agreement Regulations 2000, is there a potential breach?
ii. If the CFA post-dates the revocation, is there still potentially a breach of primary CFA statute. (Yes, this is still a problem. I have already had one post-revocation CFA struck down as invalid by a Regional Costs Judge. The other week I had another case settle at the door of the court with the claimant taking a heavy hit to reflect the fact the CFA was potentially defective. There are plenty of others out there.)
iii. Are there potential problems caused by complicated rules surrounding retainers not made at the solicitors’ offices? How many of those working in the field of legal costs are really 100% up to speed on this?
iv. I previously mentioned Cook on Costs 2010, page 438, reporting on a Costs Practitioners’ Group meeting at the SCCO “whose view was that while Grade D fee earners might be able to draw straightforward bills of under £10,000, all other bills ought to be drafted by a Grade C fee earner, since costs are a technical matter, and matters such as the operation of the indemnity principle need more experience than a Grade D fee earner is likely to possess”. (I am note sure the Group really did say this but it is clearly Cook on Costs’ view.) The question of whether there ultimately has been a breach of the indemnity principle – eg is any given CFA invalid – may well be a complex and unpredictable question. However, the basic indemnity principle should not be complex to understand and, in my view, those who have not grasped the principle within the first few days of starting to be taught legal costs law have no place practising in costs at any level. Nevertheless, the fact that a work such as Cook on Costs expresses this view does suggest that there probably are some working in the field of legal costs who do not understand the indemnity principle (and I fear this may be correct) and really does beg the question as to what we are to judge “competence” by.
2. The ability to recognise a serious challenge when it is raised in points of dispute. At that stage it may be necessary to seek assistance from someone more experienced/specialised. Unfortunately, experience suggests that the seriousness of a challenge, to a retainer for example, is often not appreciated until a day or two before a detailed assessment hearing, when the matter is presumably referred up the chain. Worse, sometimes the seriousness of the challenge is not appreciated until the end of the detailed assessment when costs have been disallowed in their entirety. At this stage the receiving party has to purse the unsatisfactory course of trying to appeal the matter and bring in specialist costs counsel.
3. The ability to deal with any of the unexpected arguments that can arise during a detailed assessment hearing. This can arise in all types of advocacy and is the cornerstone of the “competent” advocate. This is not a skill that comes easily, except to a gifted few, and the limited amount of advocacy that the majority of us undertake in the role of law costs draftsmen brings limited opportunity to learn by experience. As a reader commented on a previous post: “the young barrister is in court almost every day, perfecting his craft. How can costs draftsmen compete?”.
4. The ability to properly draft a bill of costs. (I’m not just talking about claiming the correct VAT rate). Issues such as apportionment or division of costs, where there were a number of defendants, or where there are unusual costs orders, can be very complicated. Obviously, sometimes a bill is simply drafted in the most favourable way for the receiving party and arguments are awaited as to why it might be wrong. However, I am sure that bills are often drafted on a fundamentally wrong basis because the costs draftsman has not understood there is even an issue to address. When challenges are raised, the defect with the bill is still not understood.
Tomorrow we’ll look at “competence” from the paying party’s perspective.