In response to my tweet (for those of you who use Twitter you can follow us on @GWS_LAW) giving a link to my post on Costs Lawyer training standards, Neil Rose (editor of Costs Lawyer magazine, Litigation Funding and Legal Futures) responded:
“@GWS_LAW But non-ACL costs draftsmen can appear before courts without any oversight/training – surely need to address that first?”
I did promise to try to pull together by thoughts on this issue, so here goes.
This post is concerned simply with the issue of rights of audience. Secondly, I am prepared to recognise there may be quite different considerations when dealing with the issue of members of the public instructing law costs draftsmen/costs lawyers directly. I am dealing with the, what I assume to be far more common, situation of costs lawyers being instructed by other lawyers.
Today I will deal with the limited issue of the “higher” rights of audience that Costs Lawyers have. To make this absolutely clear, if I have failed to do this before, these higher rights are limited to appeals before Circuit Judges and High Court judges, not higher. Nevertheless, this is a specific “right” granted by the Association of Costs Lawyers and not something that other costs draftsmen have.
I will proceed on the assumption that the reason why the ability to appear at this level is usually restricted is a desire to ensure an appropriate level of skill/experience from advocates. Although the courts may have been far more tolerant of advocacy standards before district judges sitting in chambers, this has been viewed as one level up.
Does the Costs Lawyer course ensure that those obtaining this right have such skill/experience? No and I have yet to hear anyone seriously suggest the contrary. I am not familiar with the details of the ACL’s current full training programme, so far as it relates to advocacy, and therefore cannot comment on whether this is robust enough, but the vast majority of those who have been granted Costs Lawyer status will have done so on the back of the Costs Lawyer course.
It is quite possible that I have blown this particular issue out of all proportion. The number of Costs Lawyers who actually try to use these rights is probably extremely small, although that doesn’t seem quite the point. A professional body should surely only grant rights to those who can show they are sufficiently competent. Not grant to all and then hope members have the sense to exercise this judiciously.
It has always been open to judges at this level, or above, to give “leave” to costs draftsmen to appear before them on a case-by-case basis. However, that is a matter for the judge in question rather than being a “power” transferred to a professional body.
The fact that the Ministry of Justice believed that all existing members of the ALCD, as it was, could be granted these rights without any further training (what were they told?) does not really seem to answer the criticism.
It looks increasingly likely, especially once ABSs come into force, advocacy regulation will receive a major shake-up, possibly with the Bar Standards Board taking over the role as sole regulator of all advocates.
Costs Lawyer status has got off to a bad start as a result of the current system which grants this right far too lightly.