The costs lawyer’s office cat

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.

7 thoughts on “The costs lawyer’s office cat

  1. A FILEX or a barrister cnanot delagate their right of audience. Nor can a costs lawyer.

    Solicitors can. They are different and the reason for this is historical.

  2. A barrister, like a costs lawyer, is regulated as an individual- a solicitors’ firm is regulated as a firm. That is the distinction.

    I accept that the act is not clear on this issue but, if you are correct, then counsel can send their clerk to argue an application in chambers. Or send a clerk to argue a detailed assessment.

    The SCCO guide makes it clear that the court can allow a clerk to be heard in some circumstances but it is clear that a barrister cannot delegate their right of audience.

    Nor can a costs lawyer.

  3. I would guess, but haven’t checked, that the Bar Code of Conduct does not allow for one barrister to “instruct” another. Otherwise, there would, indeed, appear to be nothing in the Legal Services Act, preventing a barrister instructing a clerk. So far as I am aware, the ALCD rules have no such restriction in relation to costs lawyers.

  4. I remember a barrister sending his clerk along to a Legal Aid assessment I attended a long while ago (before all this FGF stuff), to argue for his fees.

  5. I’m with Simon. I did think at the time of reading the article that the distinction Iain sought to draw between “chambers” and “open” was wrong. I’m sure that was cleared up in one of the decisions in the Tobacco litigation a long while back. A chambers appointment is open.

  6. I’ve no doubt the judges are angling for a restriction on rights of audience.

    Will they succeed?

    Maybe supervision is the key.

    Where supervision is required for rights of audience, the bar standards board stipulates that the supervisor be in supervision of no more than two people.

    Agencies for chambers hearings who use representatives with no general right of audience are operating on a much higher supervision ratio, some I’d say of 1:100.

    I guess a judge questioning the right of audience of an exempt person could usefully enquire of the reality of supervision and make a finding of fact that it is not real. Therefore no right of audience, unless the supervisor shows otherwise.

    Quick guillotine of the tricky issues raised by the Act.

    This is all very involved, but my money is on the judges. I reckon the agencies will soon have a headless business model.

    ps. Supervision of non-lawyers is raising its head in the US foreclosure mess as well:

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