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This month’s edition of Costs Lawyer magazine contains at article from the Association of Law Costs Draftsmen’s Chairman Iain Stark continuing the discussion on the issue, raised by an earlier article by District Judge Hill, of whether independent law costs draftsmen, who are not costs lawyers, are able to appear in court. (See my previous posts on the subject of Rights of audience of law costs draftsmen.)
The article, unsurprisingly, largely supports DJ Hills views.
One interesting point that was raised was the following:
“the ALCD at present regulates only individuals and not entities. As a consequence the rights conveyed to a costs lawyer are as an individual and cannot be extended to other persons. For example, where a costs lawyer is on the record, they cannot delegate their right of audience to a non-costs lawyer. Delegation is only permitted to another costs lawyer or member of the legal profession in receipt of such rights.”
If this is true, it is contrary to my reading of the Act. I am more than happy to be corrected here and the Legal Services Act 2007 has probably not won any Plain English awards.
Employed staff without rights of audience have traditionally been able to attend hearings heard “in chambers”. The Costs Lawyer article seeks to suggest that detailed assessment hearings cannot fall within this category because CPR 39.2 now treats such hearings as being “in public”.
I don’t believe that conclusion follows. PD 1.14 of CPR 39 states:
“References to hearings being in public or private or in a judge’s room contained in the Civil Procedure Rules (including the Rules of the Supreme Court and the County Court Rules scheduled to Part 50) and the practice directions which supplement them do not restrict any existing rights of audience or confer any new rights of audience in respect of applications or proceedings which under the rules previously in force would have been heard in court or in chambers respectively.”
A detailed assessment hearing can be treated as being both “in chambers” and “in public” with no apparent conflict so far as rights of audience are concerned.
Consider again paragraph 1(7) of Schedule 3 of the Act, which deals with “Exempt Persons” for the purpose of rights of audience:
“The person is exempt if -
(a) the person is an individual whose work includes assisting in the conduct of litigation,
(b) the person is assisting in the conduct of litigation -
(i) under instructions given (either generally or in relation to the proceedings) by an individual to whom sub-paragraph (8) applies, and
(ii) under the supervision of that individual, and
(c) the proceedings are being heard in chambers in the High Court or a county court and are not reserved family proceedings.”
Sub-paragraph (8), so far as relevant, refers to “any authorised person in relation to an activity which constitutes the conduct of litigation”. So a costs lawyer, who is authorised to conduct costs litigation, instructs a non-costs lawyer to undertake the advocacy in relation to a specific detailed assessment hearing. So long as the individual being instructed is properly supervised (whatever that means) do they not fall into the category of “exempt person”?
Even if DJ Hill is correct and rights of audience generally are restricted to direct employees of solicitors, in the context of costs proceedings this would apply equally to those working directly with/for costs lawyers (so long as supervision could be shown to be in place).
If my interpretation is correct (and I sleep soundly knowing there will be plenty to correct me if I am mistaken) the ALCD’s recent decision to upgrade large numbers of its membership to costs lawyer status has, for all practical purposes, also granted rights of audience to the very large number of non-costs lawyers who work with/for costs lawyers.