Costs Lawyer standards

I used to have an eccentric aunt who would write angry and irrational letters to the local paper. I must take after my aunt as I keep finding myself using the Legal Costs Blog as the equivalent of an irate letter to the local rag.

On the subject of “angry and irrational”, the costs lawyer debate continues to rumble on with a recent edition of the Association of Law Costs Draftsmen’s Costs Lawyer magazine devoting large parts to the topic.

The debate obviously has a number of different strands to it, with interesting arguments being put forward in relation to different issues.

Let us assume for current purposes that those who previously attained Fellow status do indeed have appropriate knowledge of costs law (now and not just when they attained that status) and let us also assume that those who had attained Associate level (who have now been automatically upgraded to Fellow level) were equally “competent” in costs law.

Let us focus our attention on the issue of elevation of Fellows to costs lawyer status by virtue of simply attending the costs lawyer course.

When I attended the costs lawyer course last year, it covered three different areas over two days: Accounts, the CPR and Advocacy.

The Accounts section related to handling client money. Why, other than possibly obtaining a payment of account when acting for a litigant-in-person, a costs lawyer would want to be handling client money is a mystery to me. The ALCD would have better advised to have simply banned members from handling client money. This is something likely to end in tears, but that is another debate.

The CPR part of the course was a bit baffling. A half-day course was clearly wholly inadequate to teach the areas it tried to cover. If one assumes that those who had already reached Fellow status were already familiar with the CPR (hence the briefness of this part of the course) then the only useful purpose of including this section would be to explain exactly what a costs lawyer could or couldn’t do when exercising their new rights to conduct costs litigation. The course did not do this and I am still not 100% sure as to what the limits of the rights are.

We then come onto the other element of the course: Advocacy. As I mentioned when I discussed this aspect before, the advocacy element lasted one day and there was no test or other assessment process to judge the competency of those attending. There is no requirement for any previous advocacy training or experience. At the end of the course, those who had attended were granted rights of audience in relation to detailed assessment proceedings including appeals before a High Court Judge or Circuit Judge. The ALCD, or ACL (Association of Costs Lawyers) as we must now learn to call it, has been justifying the recent changes to its structure on the basis that these changes are largely inevitable as part of the modernisation of the profession. It is therefore interesting to examine what developments are occurring elsewhere in the wider legal profession.

The Joint Advocacy Group (JAG) was established by the Bar Standards Board, the Solicitors Regulation Authority and ILEX Professional Standards to develop a scheme to quality assure criminal advocacy across the three professions. Some will immediately say that comparisons with criminal advocacy are entirely misplaced. An individual’s liberty may be at stake in criminal proceedings which is infinitely more important than grubby disputes over legal costs. However, a single legal costs dispute can, and often does, run into millions of pounds. An individual may be bankrupted as a result of the legal costs at stake. A company can become insolvent. A firm of solicitors may collapse. Let us not underestimate the importance of what can be at issue. Further, JAG has said: “Further consideration will be given to the question of quality assurance in relation to other areas”.

JAG has recently published a Consultation paper on proposals for a quality assurance scheme for criminal advocates. It is worth exploring in some detail what they had to say about advocacy and how this appears to contrast with the ACL’s approach to the subject:

“Effective advocacy is fundamental to the justice system. Members of the public rely upon it for the proper presentation of their case and the courts are dependent upon it for the proper administration of justice. There is therefore a need for systematic and consistent quality assurance of advocates. … The proposed scheme therefore builds on the existing education framework for entry into advocacy to develop a rigorous assessment process to ensure that adequate standards are attained at the start of an advocate’s career.”

Higher rights of audience are granted by the ACL without any form of assessment process. There is a total absence of “quality assurance” or “assessment process” in the granting of these rights.

“Periodic re-accreditation will ensure that those standards are maintained as the advocate’s career progresses. This is complemented by an informal reporting arrangement for judges and others to refer poorly performing advocates for remediation or re-training.”

The ACL has no similar re-accreditation process (never having put in place an “accreditation process”) and had made no public announcement that it plans to do so.

“Regulatory intervention into the advocacy market has long been argued as unnecessary as market forces should eliminate the under-performing advocate. However, whilst market forces can generally be relied upon to identify the competent advocate, it is not necessarily the case that the less competent will not be instructed. In addition, it is increasingly uncommon for an advocate to be observed by the selecting professional. It has become apparent therefore that natural selection through market forces is not the answer to assure the quality of all advocates. The public interest and consumer protection requires a more proactive approach to assuring advocacy competence.”

This is probably a particular problem in relation to detailed assessment proceedings. There is probably no other area where the (professional) client is less likely see the advocate in action.

“Oral advocacy is a performance skill. As such, it must be both taught and assessed in a manner which reflects this. It follows that any system of quality assurance must focus on the assessment of actual performance if it is to provide an effective and rigorous assessment and accreditation of oral advocacy which addresses and tests the standards of the key requisite skills.”

“JAG proposes that the QAA scheme should include four levels of criminal advocate, similar to the levels used by the CPS in allocating advocates to cases. The final defined levels will be determined in the light of consultation responses and after discussions with the CPS in order to assist with harmonisation.”

This is interesting. One of the ACL’s justifications for upgrading Associates to Fellows was that there were too many membership categories. (In fact, the ACL is probably small enough that each member could be given their own title and the system would still work fine. How about “Associate Deputy Lieutenant Costs Lawyer, with Two Stars”?). So the ACL is going off in one direction just as the rest of the legal profession is going in the other.

“Advocates will be assessed to minimum standards of competency at each level. Levels in a regulatory QAA scheme are not therefore a means of recognising excellence but are present to ensure that advocates are operating at a level at which they are competent. Advocates will be assessed against the common advocacy standards at each level.”

Readers will recall that the ACL has justified the recent change in structure on the basis that “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”. In relation to advocacy, the ACL has not set the bar too low. It never set one in the first place and shows no plans to do so in the future.

“JAG proposes that all advocates at all levels should be subject to compulsory re-accreditation every five years.”

The recent decision to automatically upgrade all Associate members to Fellow is not directly linked to the problem of inadequate advocacy training. It has, however, highlighted it. The ACL is now granting higher rights of audience to a large number of additional members who previously did not have such rights.

Given the issue of professional standards in the ACL has moved centre stage in recent months, you can imagine my surprise by what fluttered out of a recent edition of Costs Lawyer magazine. This was an application form for a course titled: “Client Care, CPR and Advocacy (Costs Lawyer course)” – ie the course that promotes the newly upgraded ACL members to costs lawyer status. Other than the apparent change in subject from “Accounts” to “Client Care” (although the former is possibly covered by the latter) this is the same course I attended last year.

There was, however, one subtle change. The date for the course was 1 November 2010 (9.00am to 5.00pm). The two-day course has been reduced to one. I suppose the advocacy part may have been allocated a whole half-day. If it was the afternoon slot, it was probably 3 hours. Previously, when the ACL was striving for excellence, a full day would have been considered necessary. Now that the test has been set at a level of “competence”, a half-day suffices.

There appear to be one of two ways of viewing this issue:

1. Advocacy, at least in relation to detailed assessment proceedings, is something requiring little or no skill or experience. This includes costs appeals before High Court Judges and Circuit Judges. A level of “competence” can be achieved by those who may have had no previous advocacy experience in a 3 hour training session. Any form of initial or ongoing assessment is entirely unnecessary given how undemanding costs advocacy is. In this context, the ACL’s chairman’s comment that some of its members should be saying in big cases: “Don’t instruct a barrister. I can do this” makes perfect sense. The ACL granting higher rights of audience as though they were handing out Smarties is nothing to be concerned about.


2. Advocacy, at whatever level, is indeed a specialist skill that requires proper training and should be properly assessed. The ACL Costs Lawyer course should ensure that those standards have been met before granting higher rights of audience. The course is not fit for purpose.

There has been legitimate criticism in the past of those posting anonymous comments on the Legal Costs Blog denigrating aspects of the ACL. Let’s balance that now by having some non-anonymous comments from those who believe the ACL’s approach to advocacy standards is appropriate.

15 thoughts on “Costs Lawyer standards

  1. “TL;DR” – (Too long; didn’t read)

    Unfortunately, this is the problem with a large number of law costs draftsmen when it comes to judgments (eg Hollins v Russell) or rules (eg the CPR). A little bit more time spent trying to master one’s chosen profession goes a long way.

  2. Another interesting article Simon and no doubt will raise questions at the AGM (hopefully) and certainly more worms to the over-flowing can!

    As I have stated in the past prior to last years AGM, Filex managed to retain all their member levels and at half the price – shame we couldn’t which has clearly caused a huge rift with the Legal Aid element of the Association of which I am one but not entirely!

    I too look forward to your further requests. As a retired Police officer I even went through advocacy training in the ’70’s!! The good old days pre CPS!!

  3. Simon

    Whilst there is merit in some of what you say, there is a wider mis-conception, that you perpetuate in your Blog, that we have “higher rights” of audience, we do not.

    To use the phrase “Higher rights” elevates our status in the minds of the uneducated, to that of a solicitor with “Higher Rights” who subsequently can appear in the Crown Court and the Court of Appeal. Our “right” is no more (and in fact is considerably less) than any newly qualified solicitor who can attend a court hearing as a matter of “right”, a “right of audience”, without having to rely on counsel or indeed, as was the case only a few years ago for FALCDs, although again not many draftsmen knew this and even fewer sought it, request permission, or “leave” to speak before launching into objection number one!

    There are good Costs Lawyers, there are bad Costs Lawyers. There are Costs Lawyers who will want to exercise their newly given “right” of audience and indeed their “right” to conduct costs litigation, there are Costs Lawyers who will be content to draft bills and never leave their desks.

    However, good or bad, exercised regularly or not, the right exists, for all.

    There are good solicitors, there are bad solicitors. There are solicitors who regularly attend court as advocates on CMCs and trials, there are solicitors who choose never to attend court, there are numerous solicitors (and this is difficult for those of us in the costs world to comprehend) who deal with non contentious work which never requires proceedings, let alone an attendance at court.

    However, good or bad, regularly exercised or completely forgotten, these rights exist for all solicitors.

    I am no longer on the ACL Council but I know the amount of hard work which went in to the drafting of the rules and continues today in relation to training and regulation of the profession.

    Solicitors have to obtain CPD, Costs Lawyers have to obtain CPD. Solicitor’s CPD does not have include any specific advocacy training or assessment for a solicitor to maintain the “right” to attend court. Costs Lawyers have to obtain CPD. Why should the ACL make the continued provision of a lesser right more onerous?

    There is of course a commercial consideration, poor Costs Lawyers will lose business, in due course, to good Costs Lawyers. Further, and a practical, rather than technical consideration, Costs Lawyers are in the main, one step removed from the public and are employed by fellow professionals, solicitors, who will soon sort the wheat from the chaff.

  4. Glen, despite my calls for better advocacy standards for the ACL, I am against regulation. I did try to make clear that CL “rights” are to High Court and Circuit Judge, rather than above, although perhaps not very clearly. Nevertheless, it is a “right” for CL to appear, as opposed to a concession granted by the courts and, indeed, in the past I have appeared at that level by virtue of the court granting permission.

    Despite my general opposition to “regulation” of advocacy in the lower courts, I see limited evidence, bizarrely, of solicitors being able to “sort the wheat from the chaff”.

  5. Before I start, I really ought to:

    1. Enter a caveat. While I am a current member of the Council of the ACL, the following comments/views are mine alone; and

    2. Confess to ‘hiding’ under the cloak of anonymity both here and on other sites (I am that ‘Happycostslawyer’!).

    The above article is seemingly written without knowledge of critical pieces of information.

    When the ALCD, as it then was of course, was granted the power to bestow upon its Fellow members the rights of audience and (broadly speaking for present purposes) to conduct costs litigation, such a grant was based on the then training course and no more (i.e. the powers that be were satisfied with the training structure as it then was – without the Costs Lawyer course). Accordingly, the ALCD did not need to impose the Costs Lawyer course on its Fellow members at all.

    However, it was considered appropriate by the Council of the time (which was met with much opposition it must be noted) to at least ensure some training was given in respect of inter alia advocacy. Is some education better than no education (remembering that the MoJ approved the application by the ALCD without any such training)? It must be, surely.

    Secondly, ALCD/ACL members are not permitted to handle client monies (you question why that might be required – one reason might be for example to aid cashflow, if one is able to deduct one’s agreed fees from costs received from the paying party) nor will they be. That is why the accounts aspect of the Costs Lawyer course has been ‘axed’, resulting in a shorter course.

    With regard to the analogy with JAG, I am afraid that I am with the ‘some’ who will say that the same is misplaced. Apples with apples, as the saying goes; are the ‘JAG plans’ to apply to civil solicitor and barrister advocates?

    Finally, I am ‘with’ your second, numbered view of the whole issue – save for your very last sentence about being fit for purpose. As I understand the ACL training regime, advocacy is already ‘covered’ for members who enrol as students (which is not dissimilar to that training I received during the LPC many moons ago) and no doubt that training/education will be changed/adapted/improved as time goes on. Going back to my first comment above however, the extant training in respect of advocacy was approved by the MoJ way back when the application for the aforementioned rights was approved.

    Summing up, I would not go so far as to say that the training isn’t broken and thus doesn’t need fixing, but it is wrong to say that there is no training whatsoever, or that what training there is is not fit for its purpose.

    PS Simon – the deadline for nomination as a Council member for the next year is 4pm today. Shall I fax a form to you for completion?!

  6. Jon,

    Thanks for sharing your thoughts on this. I was hoping this debate wouldn’t be too one sided.

    I am still left flabbergasted as to how the MoJ was persuaded that all Fellows, as they then were, should be given advocacy “rights”, given many would never have gone through the current training course, and with no requirement for advocacy training or assessment.

    This has now been compounded by the decision to upgrade Associates (many of whom will, again, not have gone through the full training).

    Post-Jackson/legal aid reform, there is not going to be a large number of new members coming through the full ACL training scheme. The fact that the full training scheme for new members “may” provide adequate advocacy training, does not address the issue of existing members.

    The ACL is pressing for a costs monopoly for existing members without any evidence of proper advocacy standards (notwithstanding the MoJ’s views).

  7. Jon,

    A further thought occurs. The MoJ granted the power to bestow upon its Fellow members rights of audience based on the adequacy of the then training course. This presumably included, or was at least taken by the ALCD to include, existing Fellows who had not actually taken that course. However, did the MoJ also grant this same power in relation to Associates who have, in turn, been automatically upgraded to Fellow?

    To summarise, did the MoJ allow for powers to be granted only to those who had taken the training course? The vast majority of those who have now been granted those rights presumably never took this course. Or, did the MoJ give the ALCD the power to grant rights to all existing members regardless or what training they had had?

  8. As I recall matters, it was made clear that there were existing, or ‘old’!, Fellows (i.e those members who sat and passed the old examination, members who wrote dissertations, members who started the organisation back in 1977 and members who were admitted as Fellows by the long since gone ‘reference route’), members who would become Fellows (from Associates) by sitting and passing a further examination and members who would become Fellows by automatic upgrade having completed and passed the training course (in its then guise – slightly but not fundamentally different from the current course). All such Fellows were also required to have at least eight years’ experience in costs matters before being able to hold themselves out as Fellows.

    In other words, the application was transparent. Further of course, the then ALCD’s conditions of membership and continued membership, in respect of inter alia insurance (a point mooted elsewhere) and CPD, were also approved.

    PS Is that a ‘no thanks’ in respect of my previous postscript?!

  9. It just wouldn’t do for each of us to promise to vote for the other in this public way! :-)

  10. Sorry Simon, I am struggling to see a huge difference between our position and say The Law Society (and reference to my 20 years in practice and never been to court point above).

    As Jon mentions, and I was on the Council for at least part of the requisite time, the application was transparent and all levels of membership were laid bare to the MOJ.

    It has to be remembered that we are still a relatively new association, I wonder how many of the Law Society’s original membership were granted rights without taking any of the Law Society’s exams? I suspect quite a few (well all in fact) as they, like us at the outset, would have had no formal qualifications or exams at the time. But that was a few hundred years ago, all such original solicitors have long since departed, so we no longer give it a thought. Historians see here: (a familiar sounding tale to those who recall and were involved in the ‘birth’ of the ALCD?).

    The Association had to start somewhere. As I understood your original post, you were concerned about the ACL granting rights to its members without there being a more vigorous advocacy training session, you have my thoughts on that. You are now seemingly intent on unpicking the original application for rights as was submitted, on the Association’s behalf, many years ago. To what end, the removal of our rights? I am in house so it is a moot point as to whether on a practical level, I personally benefit but I suspect you personally do. (Apologies, that was not meant to be “personal” but simply an illustration of my relative impartiality in this debate).

    Or are you suggesting the entire membership structure should be shelved and we all start again? In which case is anyone qualified to run a course? Who marks the course? Who sets the course? Do we all follow it or only those who have not followed it previously? Does that mean that Costs Lawyers who passed their Associate and Fellowship exams and/or became members of the ALCD before you or I had sharpened their first pencil, should now do the course, whereas those who many of us manage, tutor and coach, on a day to day basis, remain fully fledged costs lawyers subject perhaps to some further, and in my view unnecessary advocacy training?

    And apologies again, I am not sure where you are going with this. Surely if you are not happy with the current system, the best way to change it is to get yourself on the Council and change it from within?

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