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Blog post from March 2012:
CPR 48.6 allows for a litigant in person to recover “the costs of obtaining expert assistance in assessing the costs claim”.
CPD 52.1 states that those who qualify for the purposes of this rule will include a “Fellow of the Association of Law Costs Draftsmen”.
The problem with this rule is that most Fellows have been converted to Costs Lawyers over the last few years and the category of Fellow ceased to exist entirely as of 31 December 2011. (And there is now no such thing as the Association of Law Costs Draftsmen – now renamed the Association of Costs Lawyers).
Therefore, the rules as currently drafted refer to a category of lawyer that no longer exists and no longer allow for the recovery of costs that would otherwise have been recoverable. (The problem ceases to exist if a Costs Lawyer goes on record as acting for the litigant in person because they then cease to be a litigant in person. However, not all litigants in person may want this to happen and it potentially means that the costs of isolated work, such as a Costs Layer just drafting points of dispute, would not be recoverable by the litigant in person.)
The Civil Procedure Rules Committee are fully aware of this rather embarrassing oversight in failing to update the CPD and I am sure we can expect the words “Costs Lawyer” to be substituted in place of “Fellow of the Association of Law Costs Draftsmen” in the October 2012 CPR amendments even if, inexplicably, this has not made it into the April 2012 update.
Oddly, no such change was made in April 2012 or October 2012.
Thankfully the costs rules have now been fully redrafted in light of the Jackson reforms by a team of dedicated experts and this glaring oversight has now been corrected. Practice Direction 46 at paragraph 3.1 now reads:
“In order to qualify as an expert for the purpose of rule 46.5(3)(c) (expert assistance in connection with assessing the claim for costs), the person in question must be a—
(c) Fellow of the Institute of Legal Executives;
(d) Fellow of the Association of Costs Lawyers;
(e) law costs draftsman who is a member of the Academy of Experts;
(f) law costs draftsman who is a member of the Expert Witness Institute.”
You couldn’t make it up.
I’ve dropped the Civil Procedure Rules Committee a note in advance of the meeting on Friday, when they will try to deal with outstanding errors/corrections, but I’m not holding my breath.