Not long ago I commented on the perceived differences in the skills of specialist costs counsel compared with costs lawyers and concluded that the latter could not realistically expect to compete with the former. The comments that were made on the post suggest that I am not alone in this view.
You can therefore imagine the sense of irony I felt in relation to the telephone call I received a day or two later from a defendant solicitor client.
They had previously instructed specialist costs counsel to attend a detailed assessment hearing. Unfortunately, the bill of costs had been assessed for a few pounds more than the defendant’s offer and the the claimant had therefore been awarded the costs of the detailed assessment hearing.
Now, losing by a small margin is not exactly unknown in costs matters but there were one or two unfortunate features:
1. The defendant had made an offer before the bill of costs was drafted. Excluding the costs of drafting the bill, the defendant would have won comfortably on the offer (see Forward v Burton  EWHC 90003 (Costs)). Counsel failed to argue this point.
2. The bill had been correctly drafted, at the time, claiming VAT at 15%. The defendant’s offer had been based on 15% VAT. No request had been made to amend the VAT claim in the bill. Apparently, or at least so the court subsequently ruled, the defendant’s counsel had agreed VAT at 17.5% when doing the calculations with the other side outside court. No attempt had been made to argue that consideration of whether the original offer had been successful should have been based on the VAT rate that applied when the offer had been made. This made the difference between winning and losing.
The barrister in question shall remain nameless but, from my limited experience of being against him in court, is a gifted junior (as specialist costs counsel almost invariably are). So what went wrong?
I suspect this was a typical example of the potential limitations and drawbacks of relying on specialist costs counsel. Or, at least, relying solely on costs counsel.
Specialist costs counsel are often fiendishly clever when it comes to arguing complex and novel points of costs law but often have much less of a grip on the rough-and-tumble of day-to-day disputes. Issues that are, or at least should be, bread-and-butter for law costs draftsmen are ones that costs counsel are often far less familiar with because they tend to be instructed to deal just with the big issues, such as CFA compliance, rather than run-of-the-mill detailed assessments. I know a number of costs counsel who would immediately agree that this is correct and often prefer to have a costs draftsman attend a detailed assessment with them to deal with the routine arguments. The drawback with this, of course, is the extra cost of having both attend with every chance the judge will only allow the fees of one.
So, I’m now going to have to refine what I said before. Costs counsel will generally be far more appropriate to instruct to deal with complex legal costs arguments and for cost appeals. Law costs draftsmen/costs lawyers may be better for routine detailed assessments and, sometimes, to assist costs counsel on cases that span both complex and routine issues (even if you shouldn’t expect to recover two sets of fees).
To add to the problem faced by instructing solicitors, they often have to rely on their costs draftsman/lawyer to advise them on whether there is indeed a problem complex enough to merit involving specialist costs counsel. I’ve seen enough cases to know that sometimes this is only appreciated during the middle of the detailed assessment when the costs draftsman/lawyer finds themselves floundering. Or worse, at the end of the assessment hearing when it has all gone horribly wrong.