Yesterday we examined what amounts to a “competent” law costs draftsman from the receiving party’s perspective. Today we will look at this from the paying party’s view point.
From the paying party’s perspective, the key criteria are similar as for a receiving party’s costs draftsman:
1. The ability to recognise that there may be problems with the retainer. Although a paying party will have less to work with, the scope for potential challenge is vast, with the various complex rules and regulations that surround this area. If a law costs draftsman fails to spot a potential breach, that would have meant all costs might have been disallowed, can they be described as “competent”?
2. The ability to identify all the potential “routine” challenges. For those who do not work in the field of legal costs it is probably hard to imagine quite how endless these can be. At the last ALCD examination, one of the questions required the drafting of points of dispute based on a sample bill of costs. From memory, the receiving party was meant to be a limited company. As such, VAT was wrongly claimed in the bill. Costs Lawyer magazine, commenting on the examination results said:
“many candidates (Associate and Fellowship) missed the VAT point. [This point was] fundamental to the job we do as costs draftsmen and costs lawyers. … An understanding of VAT is therefore vital to any successful costs draftsman or costs lawyer.”
The article did not go on to detail whether any of the candidates who failed to spot this issue were nevertheless passed at Associate or Fellowship level (shortly, if not already, to be granted Costs Lawyer status). Failing to spot this issue in real life would almost certainly lead to a professional negligence claim. “Competent”?
3. The same level of advocacy skill as should be expected from a receiving party’s costs draftsman. The irony of this test of “competence” is that there will be costs draftsmen who wouldn’t on any proper test be described as “competent” but nevertheless routinely “win” detailed assessments because the quality of the submissions made are often irrelevant to the outcome.
4. The ability to recognise when a bill of costs has been drafted in a fundamentally flawed manner. This will be particularly important in relation to the difficult areas of apportionment and division. How often is it not even recognised that such an issue arises?
The Association of Law Costs Draftsmen will need to think carefully as to what it means to be “competent” and how this is to be measured for those now being granted Costs Lawyer status.