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A further interesting issue arises as to Costs Lawyers being potentially classified as Grade B fee earners (from October 2014). This is as a result of the wording used by Lord Dyson and in the original report recommendation.
To achieve Grade B status as a solicitor or Fellow of CILEX requires a combination of qualification (solicitor or Fellow of CILEX) and experience (over 4 years PQE).
Although we wait to see whether any further guidance will be published, the Costs Committee Report contained the following recommendation:
“The ACL provided evidence giving details on the qualification route, continuing professional development and regulatory framework for Costs Lawyers. The Committee agreed, and determined that the following approach should be adopted for those Costs Lawyers who are suitably qualified and subject to regulation under the Legal Services Act 2007 to undertake reserved legal activities:
(i) For budgeting and bill drafting, save in exceptional circumstances, Costs Lawyers should sit within the grades for Grade C and D fee earners;
(ii) For practising litigation and advocacy, save in exceptional circumstances, costs lawyers should sit within the grades for Grades C or B.”
Lord Dyson accepted the recommendation with these words:
“Costs Lawyers who are suitably qualified and subject to regulation be eligible for payment at GHR Grades C or B, depending on the complexity of the work”
Neither the Report nor Lord Dyson’s words make any comment on experience. Taken together it seems to suggest that a newly qualified Costs Lawyer could attract Grade B status for advocacy if the case was sufficiently complex.
It is, of course, important to recognise that there is a distinction between formal status and the rates that would be justified on assessment. A solicitor of 20 years PQE would clearly fall within Grade A status but would struggle to justify Grade A rates for dealing with a low value RTA. Equally, a non-qualified paralegal might fall firmly within Grade D status but be able to justify rates similar to a Grade A if they were punching considerably above their weight dealing skilfully with a complex clinical negligence claim.
The Report itself recognised this issue:
“The current situation is rather ambiguous; many Costs Lawyers will be bracketed for most work in Grade D, but the criteria for the grades is sufficiently flexible for Costs Lawyers to submit for fees at Grade C and occasionally Grade B where the complexity of the work and the experience/expertise to undertake the work warrants it.”
The strange result of the Report and Lord Dyson’s acceptance of this recommendation is that it appears to have blurred the lines between status (as a matter of definition) and what rates can be justified. It should be a matter of definition as to whether a Costs Lawyer is a Grade B, C or D. It should be a matter of argument as to what rates are reasonable. What we have to date appears to make status an entirely subjective test.