The future for Costs Lawyers?


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Following on from the last couple of posts, today I’m going to explore a possible future for a regulated costs profession.

My own view is that the ACL’s training programme’s current modular structure should remain, with some possible adjustments, and a further specific advocacy module be added. Training for individuals should be adaptable for the needs of those joining. This is, after all, a vocational course. If a member worked for a volume negotiating firm they might chose just to take the General and Civil Costs module. If they also wanted to exercise rights of audience, they could choose to take that additional module. Those who worked in legal aid only could take the corresponding module. I don’t see this as being a case of dumbing-down. Indeed, this might be an ideal opportunity to review the decision to lower the academic standard of Costs Lawyers to the old Association standard from the previous Fellow standard. Post-Jackson there will an increased need for true expertise amongst those left, not less. There is no self-evident reason why Costs Lawyer status should not be granted to members on the back of this suggested model. I don’t know the first thing about legal aid law and they let me in as a Costs Lawyer. I can’t be the only one. There is no reason to suppose that Costs Lawyers of the future will need a broader knowledge of costs law than at present (especially in relation to a dwindling legal aid market). They may well need a deeper knowledge.

One of the counter arguments to the above is that some other professions (eg the Bar) do indeed require those training to study areas of law where they probably will not actually practise (eg studying criminal procedure despite having already secured a pupillage in a purely Chancery chambers). To which my response is: so what? I fail to see any reason to impose unnecessary training/entry requirements on this profession. Costs Lawyers should be properly trained for the work they actually do.

A second objection is how will members of the public (or more often the wider legal profession) know that a Costs Lawyer is competent to deal with any given area if not all Costs Lawyers have trained in every area of costs law? To this there are a number of answers:

• How do they know now? I’m a Costs Lawyer and I wouldn’t be remotely competent to deal with a legal aid matter (or at least not without no small amount of research).

• Members of the Bar may be “allowed” to accept instructions in any area of law once qualified but they are also under a professional duty not to accept instructions in a case if the barrister “lacks sufficient experience or competence to handle the matter”. Exactly the same should apply to Costs Lawyers (if it doesn’t already) and nothing further should be needed.

• If something else is considered needed, a simple rule could be introduced that Costs Lawyers may not act in an area of costs law where they have not completed the corresponding module.

What about the removal of entry to the ACL by examination route? Reintroduce. I do not accept that this route represented a “smear on the association’s history” as one reader recently suggested. Perhaps I am just saying that by virtue of the fact that this is the route by which I gained entry. However, it was no cakewalk. I would see the examination route mirroring my proposed four training modules. To gain Costs Lawyer status would require passing an examination based on at least one of the first three modules. To be able to exercise rights of audience would require passing the corresponding examination/test (probably something equivalent to that required for solicitors gaining higher rights of audience). Of course, it would be a matter for the CLSB to set the standard for entry by examination and I would encourage them to set it at an appropriately robust level.

(There seems every possibility that the CLSB will decide in any event that existing members should be subject to an advocacy accreditation process if they are too continue to exercise rights of audience.)

Now is the time to recognise that the “traditional law costs draftsman” is an important part of the costs world but in a (growing?) minority. The relaunching of the Association of Costs Lawyers is the ideal time to start to recognise this and have a membership structure that also recognises this. This may encourage the legal aid draftsmen to stay in the Association. It may also encourage the large numbers outside the Association that now is the time to consider joining.


15 thoughts on “The future for Costs Lawyers?


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    GR on said:

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    I am a solicitor who has specialised in costs for over 10 years. If the ACL truly wants to be representative of all costs people, then there should be a route designed for solicitors, like me, to become fellows without jumping through hoops and paying £3,000.00 in course fees.


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    Sue Nash on said:

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    I agree wholeheartedly with almost all of this Simon – it is certainly the sort of discussion/debate we should be having. Personally, I believe that an examination route into the profession should be limited to those already otherwise professionally qualified (such as GR) or those with at least 5-7 years experience in the costs industry. Also that it should be based on any two of the modules rather than just one.

    The interest in this debate amongst non-members is encouraging and I am sure that there will be many other opinions out there -the more the better say I!


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    Anon on said:

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    RE the training course – you miss a fundamental point in that the course is largely academic not vocational. Solicitors and Barristers also have an academic stage of training, during which they study the fundamentals of the English legal system and a number of core modules (eg Contract, Criminal, Public/EU, Tort) – thereafter they specialise.

    Coming into the ACL as a student does not require a degree-in-hand and as such the prospective member may have no knowledge of the legal system at all. The ACL course provides the basics and gives members a broad understanding of different areas of costs law.

    For every Andy Ellis (whose experience I doubt anyone could grumble about) there is another draftsman who has spent the (anecdotal) twenty years in a niche field doing little (if any) research, negotiating, advocacy.

    It is a simple fact that many draftsmen have never been taught how to read Judgments, how to undertake legal research, how to deal with statutes (interpretation) etc. There are draftsmen who have never prepared a Bill, there are negotiators who have never drafted PoDs and just bounce numbers back and forth on the phone! I don’t think the aim should be to cater for the lowest common denominator.

    There has been a huge push for recognition in recent years, including a lot of work with the Law Society, Bar Council, LSB, LeO etc – part of this centres on the uniformity of a professional qualification for us. Of course there is also the issue of simplicity for the sake of consumer protection.

    I do not think it benefits any of us for there to be sub-groups and caveats galore. Where does it stop? Do we have further stages of training for higher level of courts and re-categorise receiving and paying party Lawyers?

    The transition will leave some disgruntled and arguably some will get have status that others don’t and feel they should have. This is the inevitable cost of reform.

    Lets also not forget that this was put to a vote at the AGM last year, the figures now put forward for subscription tally with the figures mooted during the discussion at the AGM. The vote was overwhelmingly in favour of the reforms. The turnout is really a non-issue Simon, just as a turnout of 20% electing the government would also have no significance save for as ammunition for would-be political commentators and armchair critics. All those entitled had the right to vote, it is not for current members to pick up the slack of those who did not have the foresight or make the effort to become involved at the right time.

    Thanks


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    Maths & Such on said:

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    Simon-

    158 out of 571 eligible members voted for the proposal at last year’s AGM

    That is 28% – Can tell you’re a
    Defendant ‘draftsman’!!

    Notably 14 out of the 571 voted against ie 2% – A very vocal 2% it would seem! :)


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    Simon Gibbs on said:

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    My maths was correct, but I failed to take account of the fact that the full membership could not vote (students excluded)

    Costs Lawyer magazine gave the figure as 139 in favour out of 160 votes cast (your maths must be faulty if you get 158 – typical claimant draftsman).

    I wonder what the 187 students would have voted for. Those who have now qualified can now vote of course. Pesky elections.


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    Anonymous on said:

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    160 people, deciding the fate of a profession whom number 5000 we are now told, and where, by the ALCD’s own rules, not even 1/10th of those even had the right to vote

    says it all really, doesnt it!


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    Simon Gibbs on said:

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    Anonymous,

    I have no hesitation in agreeing that those coming into costs with no legal background need a full grounding in legal principles and all the other things you talk about. It doesn’t follow that all trainees need to study all areas of costs law.

    I agree that those coming in via an examination route (if there is to be one) need to be able to show true competence. The previous examination route to entry at Fellow level may or may not have been robust enough. I don’t accept that an entrance test cannot be established that ensures this appropriate standards.

    If the ACL is to remain a “voluntary” body for those who work in costs then the (new) current entry route can remain unchanged. Just don’t expect to see large numbers joining.

    If the ACL is to regulate the whole profession then different criteria apply.

    This is not just a question of what hurdles should there be for the new entrants to the profession (although events on the horizon suggest those numbers may be rather small). The bigger issue is what hurdles should be put in place for those who already are costs draftsmen and wish to do no more than continue to do what they have previously done.

    Given the flexible arrangements for entry to the Association in the past and the criticisms of the standards of some of those already inside, very persuasive arguments need to be put forward for the current arrangements for what otherwise looks like: I’m all all right Jack, pull up the ladder.


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    Maths & Such on said:

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    Simon –

    I’m sure the AGM minutes will prove one of us right in due course. Either way (and to be a pedant) if you took account of those not entitled to vote then your maths was indeed wrong. Much as mine may be if the figure was 139 not 160. So not 20%, maybe 24%, maybe 28%. You used to work at a firm of negotiators – lets split the difference! ;)

    Anon –

    You may wish to invest in a calculator – 571 out of 5,000 clearly constitutes more than 1/10th.
    Also, in terms of the general point (ie ACL/ALCD being representative of the profession) – if people chose to be unregulated in a market that does not require regulation then that’s their choice. Moaning about the outcome of the regulatory body’s actions afterwards though is outright ridiculous.

    For all the guys&gals that have been around awhile, the ALCD has had enough dubious entry routes over the years including admittance by interview and obviously the direct exams.
    Why didn’t you enter then?
    What has changed so dramatically that last year you could have studied, taken an exam and been in, but obviously didn’t, and now you criticise the obstruction in having to undertake a full course and pay more money etc ?

    There are plenty of established draftsmen who have swallowed their pride and sat in the exam hall. Most having passed and now (proudly) advertising themselves as Costs Lawyers

    If you weren’t interested then, don’t be interested now!
    You’re not regulated so the changes mean nothing to you – you don’t have to be insured or undertake any CPD. Yay for you and the clients that have enough faith in you to send over work!


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    Anonymous on said:

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    Simon,

    Good to see we have some common ground.
    I think requiring students to undertake the aforementioned modules is not overly onerous and certainly aids their general working knowledge of the costs field.

    I think there is a lot to be said for uniformity and consider the approach proposed by yourself will be open to the same sorts of scrutiny you have levied at the now defunct entry routes.

    My own view is that there should be a full training course open to all prospective members and an abridged course (a la the QLTT) for established practitioners coming into the ACL.
    Or as an alternative, having an exemption scheme for specific modules upon application – someone who has worked in house for, say, a shipping firm doing SoC work for over x years could seek exemption from that module (or part thereof) but still engaged with modules on i/p and legal aid stuff.

    Thanks


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    Andrew Brasher on said:

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    Whilst this all leads to very interesting reading we became; that is, members of the ALCD as it was then ‘Regulated’ as at the 1st January 2007, yes that long ago! Whilst the Advocacy course was in place rapidly thereafter, our ‘structure’ of membership was not. This it would seem commenced only in late 2009/2010 as we neared the AGM. I wonder why we lost a good 2 1/2 years of negotiation within our membership to thrash out the levels we so required.To quote John Hocking Chairman at the time “The Council also wants to use this opportunity to ensure first and foremost that the Association is fully servicing the needs and wishes of its members”.

    Clearly watch this space!


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    GR on said:

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    Maths & Such – what was I doing when ALCD was allowing admittance by interview? – I was too busy qualifying as a Solicitor.

    No one has addressed the problem that a solicitor, who specialises in costs, has to now jump through the same hoops as an 18 year old who has only four GCSE’s at grade C or above.

    Why would a solicitor want to be a member of ACL? – The fact is, the credibility of ACL would benefit from barristers ands solicitors joining whilst in turn bolstering the CV’s of those barristers and solicitors. Win-Win situation


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    Maths & Such on said:

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    GR —-
    quite simple really, apply for membership as an affiliate
    (assuming you are still a practising solicitor)


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    Sue Nash on said:

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    Hmmmm ….. leaving aside the main issue, does the ACL still have Affiliates?


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    Anonymous on said:

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    Maths & Such

    why didnt I apply through any of the “dubious entry routes” as you flippantly call them? Because I had and have more integrity than to associate myself with such practices. The fact the ACL then sets itself up as a holier than thou organisation with this background, and expects everyone else to bow down to them and follow the rules they now decide to set, is priceless.

    And on the maths point, I didnt really need a calculator to work out that of the 160 members able to vote (not the 557, as not all could vote as they were students according to Simons post), were less than 1/10th of the 5000 costs people out their the ACL now admit to


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    GR on said:

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    Maths and Such:

    From the ALCD website:

    “Affiliate members should not be predominantly engaged in the practice of legal costs within England and Wales”

    Rules me out then. Any other suggestions?

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