Costs Lawyer advocacy – continued

I recently received a copy of an anonymous letter addressed to the Legal Services Board. A copy of the letter had also been sent to the Bar Council, Law Society and ILEX. The letter had apparently been written by a costs lawyer. The gist of the letter can be gathered from this sentence:

“My concern is that, in comparison to other regulated professionals, many Costs Lawyers lack the proper training required to act on behalf of clients and before the courts.”

The fact that Association of Costs Lawyers (ACL) members are writing to regulatory bodies complaining about the standards required for costs lawyers is indicative of the strength of feeling felt in some quarters.

When the ACL was considering whether to remain an approved regulator I was opposed to the idea. At the time I wrote:

“The proposed increases to membership fees may currently seem manageable, if disproportionate to the benefits. However, they are based on a current understanding of what regulation will require. As Popplewell notes: ‘at the time of applying for authorised body status, we did not know and could not have known the implications of the act’. Precisely. In the highly unlikely event that the ALCD did acquire protected body status, there would then be no way to go back. The ALCD would not be able to decide at some future date that the benefits no longer justified the costs and simply unregulate itself. Once regulated under the Act, there is no way of knowing what may be demanded in the future. Only a moment’s thought will reveal the LSB might demand almost anything at some future date. Does the ALCD really want to lock itself into a regulatory system over which it would have no control?”

In Wednesday’s post we examined JAG’s proposals for criminal advocacy quality assurance scheme. JAG’s consultation paper said: “Further consideration will be given to the question of quality assurance in relation to other areas”. There is therefore every possibility that through JAG, or a regulatory body, a decision will be made to impose advocacy assurance standards on costs lawyers. Frankly, it is amazing the ACL has been able to grant (limited) higher rights of audience based on its current training scheme. It is entirely unknown what future standards might be imposed or what the cost of this might be.

I am grateful for those who have posted comments on the Legal Costs Blog explaining the history behind costs lawyers acquiring current rights. If I have understood correctly, the Ministry of Justice appears to have accepted that all existing members of the ALCD at the time, whether Fellow or Associate, were suitable for being granted rights of audience without further training or assessment. Given a sizeable number would never have conducted advocacy or had any advocacy training (eg many legal aid costs draftsman), all I can say is that the Ministry of Justice must have been asleep on the job.

The reason why the Costs Lawyer course is so short, and has become even shorter, is no doubt one of cost. To produce a training course that was adequate to produce no more than “competent” advocates (and not even at higher court level) has no doubt been viewed as prohibitively expensive. The next Costs Lawyer course year is priced at £300 (including VAT). With the best will in the world, you can’t provide a proper advocacy training course in half a day for £300.

The number of costs lawyers has probably now grown to 600-700. What percentage of these would pass a proper quality assessment test for advocacy at High Court or Circuit Judge level? I would hazard to suggest that a large number would not turn up to a formal assessment on the basis that they have a more realistic understanding of their abilities than the ACL or the Ministry of Justice. Now that responsibility for regulation of the ACL is switching to the Costs Lawyers Standards Board, who knows what they will decide. It would hardly be a surprise if they decided to impose an immediate accreditation process on existing costs lawyers, at least for those wishing to practice advocacy, to ensure consistent quality across the membership.

The same issues arise in relation to ACL’s goal of achieving protected body status. If achieved, there is no way of knowing, and little way of controlling, what requirements or costs of compliance may then be imposed on members.

The ACL had already admitted: “the costs of compliance with the Act will probably be disproportionate to the direct benefits gained by LSB regulation in terms of the exercise of section 27 and 28 rights by Costs Lawyers”.

September’s edition of Costs Lawyer magazine reported:

“The LSB noted that the ongoing costs of regulation are likely to increase the level of revenue required by the ALCD/CLSB, which in turn will probably mean higher practising certificate fees. It said: ‘It remains to be seen what the impact is on ALCD membership of increasing their fees to meet such costs. There may be consumer impact if increased cost leads to existing members moving away from regulation.’ In its action plan, the ALCD said this highlighted the importance of making costs-related work a reserved legal activity.”

This is the ultimate irony. The ACL recognises that the actual benefits of regulation may not justify the costs. It fears that members may vote with their feet and leave the ACL. Its solution is therefore to try to make membership compulsory for those who work in the field of costs. If the ACL ever finds it is obliged to ensure its members are subject to proper advocacy training and assessment the cost of regulation will rise substantially. It is locking itself into something that it clearly believes many of its members cannot afford or would not be prepared to pay for.

All this is happening at the same time as the recommendations contained in the Jackson Costs Review start to be implemented. At the moment there has been no news on the proposal to introduce fixed costs for the fast-track, other than extension of the RTA claims process. Given how simple and, amongst many, popular this step would be, it would be a miracle if this does not happen in the next year or two. If, and when, it comes, there are going to be heavy casualties in the costs world. Costs budgeting is not going to make up for the shortfall.

The costs profession is facing the legal aid shake-up that is also likely to seriously impact on the numbers practicing.

Post-Jackson the ACL is likely to find itself smaller and in a very different costs landscape. In so far as one of the aims of the ACL has been to remove the “cowboys” from the costs profession, the Jackson fixed costs proposals would largely achieve this through natural selection. If only high-value costs claims are left in the system only genuine costs experts are likely to survive. (For the love of God, let it be so.) The ACL may find itself stuck with an expensive regulatory system but with only a small number left to pay for it. Its recent decision to automatically upgrade Associates to Fellows, and then to Costs Lawyers on the back of a one-day course, takes the ACL in the opposite direction to the one it should be taking.

At the time, the ACL said:

“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”

Is “competent” by today’s standards going to be sufficient post-Jackson/post-legal aid meltdown?

Events outside the ACL’s control mean that there are only going to be a “select few” left. The Association has to strive for excellence if its members are to be among the survivors. There are too many excellent costs professionals outside the ACL for membership alone to guarantee survival.

I will try to bring these various rambling thoughts into something approaching a coherent whole in the next day or two.

2 thoughts on “Costs Lawyer advocacy – continued

  1. The issue of competence in advocacy is not a difficult one.

    When studying for the Bar, a student must attend hours of advocacy training per week, and then there are the seen and unseen tests. This is ignoring the rules of evidence (and the other subjects) that are dealt with separately.

    Upon successful completion of the exams, does the Bar Council consider that student to be competent to be an unsupervised advocate? No.

    After the 1st Six, is that pupil now fully released into the wild? No.

    At qualification, is that barrister allowed to never re-visit advocacy training? Not anymore.

    While the issues in your average detailed assessment do not require the breadth of knowledge that counsel in general civil practice would need, the possibility that, upon completion of a 1 day course without testing, a costs lawyer can appear at costs appeals is frankly appalling.

    There have been many recent attacks on the quality of solicitor advocates appearing in the senior courts. Some will be due to unhappiness at the Bar. Some will be utterly true.

    I rather suspect that the reason many solicitor advocates can appear to be a lesser species is simply because of the lack of constant practice. Advocacy is a skill that must be constantly practised, and the rules of evidence must be kept in mind at every moment.

    The ALCD/ACL whatever, must have noticed the latest round of meddling / improvements in the solicitor advocate requirements. Why has the ALCD / ACL not noticed that their current systems fall well below the solicitor advocate training systems that are being changed due to inadequacy?

    The last 15 years or so in particular have shown that “proper” costs litigation is a “proper” subject, and the parties involved have an absolute right to know the quality of the person they are instructing. The term advocate is not to be used lightly.

    I shall take some flak for this, but the average, “I don’t want to pay 18 minutes for a task” Detailed Assessment is not advocacy, just like the average Case Management Conference is not advocacy. Advocacy involves the building of an entire case, the links between points, the flow of evidence and how each witness or piece of evidence adds to the case in turn. A detailed assessment (without, for example, interpretation or ATE underwriting arguments) is one, two or three hundred separate arguments as to how long a task should have taken, or whether that engineers report was too expensive, and those arguments are only linked together by the impact they have on a final sum. In a simple assessment a challenge to 1 long letter will have no impact on the next.

    I am of the view that the term “Advocate” should be properly protected no matter what part of the profession it is applied to.

    For non-solicitor, non-barrister costs specialists who wish to appear on appeal I consider the term “advocate” should not be used unless that person is competent enough that (in theory) the Bar Council itself would be content to issue a practice certificate for full rights of audience albeit limited to the practice of costs.

    That is what it means to be an advocate. That, in the area of costs the person has sufficient experience and has attended approved and repeated training and passed the required testing and that they are competent to stand in Court and oppose any barrister you can think of.

    It is time for some professional honesty. Are you competent to take instructions in a costs matter on appeal that will involve the interpretation of primary legislation or perhaps the admissibility of evidence in regard to conduct of a party or lawyer?

    Could you present that case as well as junior counsel who has been in court almost every day? Would you be able to reach into a personal knowledge of other areas of law to find that inspirational Ace that wins you the appeal?

    If the answer is no, then you have no business appearing at an appeal.

    There are many fine people not in the ALCD / ACL that could properly answer “yes” but will not get the chance. There are also many people who have attended a 1 day training course without testing who will also answer “yes” when they should have given the opposite answer.

    The training must allow the individual, taking full personal responsibility, to answer “yes” in a completely honest and objectively reasonable manner. Anything less is not good enough.

  2. Sorry both but I still do not follow why we are comparing the Costs Lawyer qualification with, for example, the bar.

    Our “right” to appear in court is no more, and indeed considerably less, than any, and I mean any, solicitor, and comes nowhere near the right or rights afforded, quite properly, to barristers.

    If the ACL was permitted to grant its members a right to appear in say the Court of Appeal, then perhaps we could start comparing ACL training with the bar or even solicitors with higher rights of audience.

    It is a matter for the individual costs lawyer as to whether he or she chooses to take up the right, to what extent and whether a particular case is beyond their expertise.

    I regularly use Counsel on assessments for a number of the reasons Peter mentions not least, they are there every day but more so, and this has proved a barrier for a number of solicitor advocates, my case load does not diminish if I spend a week out of the office at an assessment hearing.

    What has been missed from the posting above is an important point raised by Jon Williams in an earlier reply, the ALCD as it then was, was under no duty to put its members through any sort of further training but chose, voluntarily, to do so.

    Ultimately, and with the risk of repeating myself, why should the ACL, or for that matter, other associations such as CIPA, insist their members submit themselves to a greater continual training policy specifically in relation to advocacy, than the Law Society impose on their membership? For a more in-depth consideration of that issue, see my response to the initial blog on this subject.

    This debate has run its course, it is time to stop comparing apples with pears.

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