The Association of Law Costs Draftsmen is now advertising for the posts of Chairman and Chief Executive Officer for the new Costs Lawyer Standards Board as part of their steps towards meeting their requirements as an approved regulator.
For those interested in applying, the details can be found here: Chairman, Costs Lawyer Standards Board and here: Chief Executive Officer, Costs Lawyer Standards Board.
On a recent post were a number of comments from readers of the Legal Costs Blog. One said that they preferred the Blog when it is “informative”. Another responded by saying they preferred the Blog when it is “tongue in cheek and amusing”.
Frankly, I resent the suggestion that anything I write on the Blog is intended to be “informative”.
There are a growing number who subscribe directly to the Blog and receive this by email. This gives me a chance to take a rough snapshot of the kind of readers it has.
A number of email addresses are private (eg @gmail or @hotmail) and so gave no clue.
Of the balance, the readers broke down on the following lines:
17.5% – claimant solicitors
20% – costs draftsmen
42.5% – defendant solicitors
5% – local or central government legal departments.
2.5% – journalists
7.5% – insurers
5% – self-insured bodies
Obviously, this is likely to be somewhat misleading. A number who appear as defendant solicitors, for example, based on their email addresses may actually be in-house law costs draftsmen. Further I suspect a slightly higher proportion of claimant representatives sneak a cheeky peak at the Blog but aren’t prepared to subscribe.
I also know that there are a number of specialist costs counsel and costs judges who read this but don’t subscribe to receive it automatically. They are probably the ones who post the angry rants anonymously in the comments section.
Previously we considered whether the Leeds detailed assessment pilot (click link) would reduce the judicial and court time spent dealing with costs disputes. The new rules can be viewed here: County Court Provisional Assessment Pilot Scheme at Annex 2.
The next issue is whether provisional assessment will reduce the costs to the parties. Those costs practitioners worried that provisional assessment will reduce their fee income may not need to be too concerned just yet, even if the number of actual oral detailed assessments hearings reduces.
It will be recalled that Lord Justice Jackson was very clear that his proposed costs reforms were meant to be viewed as a complete package and should not be introduced on a piecemeal basis. The provisional assessment pilot is just such a piecemeal step.
Jackson LJ envisaged a much simplified bill of costs format. He envisaged different points of dispute and replies:
“Both points of dispute and points of reply need to be shorter and more focused. The practice of quoting passages from well known judgments should be abandoned. The practice of repeatedly using familiar formulae, in Homeric style, should also be abandoned. The pleaders on both sides should set out their contentions relevant to the instant cases clearly and concisely. There should be no need to plead to every individual item in a bill of costs, nor to reply to every paragraph in the points of dispute”.
The pilot scheme proceeds with these elements unaltered.
Such a scheme might have some chance of success in the Senior Courts Costs Office where, at least the full time, costs judges and costs officers are generally familiar with all the standard costs argument. It is less obvious that those judges sitting in Leeds, Scarborough and York County Courts will be as familiar with the intricacies of costs law. There is no suggestion that the provisional assessments will be conducted by any particular designated judge or regional costs judge. How knowledgeable are the district judges and deputy district judges who sit in these courts? This is not to suggest any shortcomings in the ability of these judges, but are they really all 100% up to speed on the minutiae of costs law?
I have been before judges on detailed assessment where they were convinced that “base costs” only refers to base profit costs.
I have been before a regional costs judge where the CFA in question was held to be invalid. I proceeded to explain that the consequence of this was that all disbursements would be disallowed except to the extent that they had been paid “up-front” by the claimant, whether personally or by way of a loan. The judge asked for the authority for this proposition. I referred the judge to paragraphs 113-116 and 223 of Hollins v Russell [2003] EWCA Civ. 718). The judge was not prepared to accept that this is what the relevant passages meant and adjourned the issue for detailed skeleton arguments to be served.
When much of the judiciary is not 100% familiar with every element of costs law – and why should they be expected to be? – the problems with provisional assessment become clear.
If I am faced with a claim for communications with an ATE provider I currently may deal with this in the points of dispute as briefly as:
“Not inter partes. Disallow.”
For the small number of cases that reach as far as detailed assessment I can worry nearer the time which authorities to wheel out in support of this argument.
If a matter might now be heard in one of the pilot courts by way of provisional assessment, is a costs draftsman/costs lawyer going to be content to draft such a concise dispute and hope the judge is already familiar with all the relevant case law (in the way one might expect in the SCCO)? Very risky.
Will it be sufficient to draft a dispute along the following lines referring to the relevant authorities:
“The Defendant submits that time spent discussing/arranging funding is not chargeable inter partes and refers to the cases of Re Claims Direct Test Cases [2002] EWHC 9002 (Costs), Masters –v- Hewden Stuart Heavy Lifting Limited, Leeds County Court, 18/3/05 and Woolley v Haden Building Services Ltd (No 2) [2008] EWHC 90111 (Costs). Disallow.”
With the provisional assessment process being envisaged to take approximately 45 minutes (apparently), can one expect a judge to take the time to track down various unreported decisions, quoted in points of dispute, and work his or her way through them to find the relevant paragraphs and extract the principle? Very unlikely.
Do those drafting points of dispute have any real alternative other than including lengthy quotes from the relevant authority on every point in case the judge is not familiar with the issue? What might have previously been a four word dispute may turn into a four page dispute.
When faced with points of dispute resembling skeleton arguments, is the receiving party going to decide they do not need to serve optional replies? Not a chance.
Are receiving parties going to be content to deal with the dispute above by simply saying:
“Not agreed.”
Will they be content to respond simply by referring to the names of the authorities which go the other way?
When faced with comprehensive points of dispute the receiving party will respond in kind.
Even if the paying party initially keeps their points of dispute relatively brief, when faced with the inevitable weighty tome served by the receiving party they will feel obliged to serve amended lengthy points of dispute in response. The automatic right to amend points of dispute and replies (CPD 40.10) remains in the provisional assessment process.
CPD 4.5 states:
“The background information included in the bill of costs should set out:
(1) a brief description of the proceedings up to the date of the notice of commencement”
As things stand, there are those who struggle to keep the description “brief”. With a provisional assessment there will be no chance to orally explain any particular problems with the way the claim proceeded. There will be no way of knowing to what extent the judge will read the papers in detail, if at all. One of Lord Justice Jackson’s proposals, in his final report, was for bills of costs to “provide more transparent explanation than is currently provided about what work was done in the various time periods and why [emphasis added]”. I previously expressed my concerns about this change to the bill of costs format (click clink). I can see this provisional assessment pilot encouraging much more of the “why” without any of the corresponding costs saving that Jackson LJ envisaged.
There is about to be an arms race in relation to the length of preambles to bills of costs and the complexity of points of dispute and replies, and all in the name of reducing the costs of assessment.
Would a law costs draftsman/costs lawyer who fails to comprehensively plead every single point available open themselves up to a negligence claim? Would they be negligent if they failed to serve amended/supplemental pleadings in light of lengthy points pleaded by the other side?
This is going to be a costs building bonanza for those involved in costs until the pilot scheme is hastily amended. Would claimant solicitors kindly ensure they issue all their cases out of Leeds, Scarborough or York for the foreseeable future?
Yesterday we examined what amounts to a “competent” law costs draftsman from the receiving party’s perspective. Today we will look at this from the paying party’s view point.
From the paying party’s perspective, the key criteria are similar as for a receiving party’s costs draftsman:
1. The ability to recognise that there may be problems with the retainer. Although a paying party will have less to work with, the scope for potential challenge is vast, with the various complex rules and regulations that surround this area. If a law costs draftsman fails to spot a potential breach, that would have meant all costs might have been disallowed, can they be described as “competent”?
2. The ability to identify all the potential “routine” challenges. For those who do not work in the field of legal costs it is probably hard to imagine quite how endless these can be. At the last ALCD examination, one of the questions required the drafting of points of dispute based on a sample bill of costs. From memory, the receiving party was meant to be a limited company. As such, VAT was wrongly claimed in the bill. Costs Lawyer magazine, commenting on the examination results said:
“many candidates (Associate and Fellowship) missed the VAT point. [This point was] fundamental to the job we do as costs draftsmen and costs lawyers. … An understanding of VAT is therefore vital to any successful costs draftsman or costs lawyer.”
The article did not go on to detail whether any of the candidates who failed to spot this issue were nevertheless passed at Associate or Fellowship level (shortly, if not already, to be granted Costs Lawyer status). Failing to spot this issue in real life would almost certainly lead to a professional negligence claim. “Competent”?
3. The same level of advocacy skill as should be expected from a receiving party’s costs draftsman. The irony of this test of “competence” is that there will be costs draftsmen who wouldn’t on any proper test be described as “competent” but nevertheless routinely “win” detailed assessments because the quality of the submissions made are often irrelevant to the outcome.
4. The ability to recognise when a bill of costs has been drafted in a fundamentally flawed manner. This will be particularly important in relation to the difficult areas of apportionment and division. How often is it not even recognised that such an issue arises?
The Association of Law Costs Draftsmen will need to think carefully as to what it means to be “competent” and how this is to be measured for those now being granted Costs Lawyer status.
The Association of Law Costs Draftsmen, when responding to concerns about the recent changes being made to the membership structure and qualification requirements, stated:
“The rights which [the ALCD] will regulate include rights of audience and rights to provide legal services, and may in due course include the right to practise reserved legal activities. This means 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.”
The relevant test being “competence, not excellence” is clearly correct. The Bar does not expect junior barristers to have the skill and knowledge of a QC. Unfortunately, this test does no more than beg the question as to what amounts to “competence” for those acting in the field of legal costs.
The fact that a newly qualified solicitor or barrister may be “allowed” to handle a murder trial or a catastrophic clinical negligence brain injury claim does not mean they should. One would hope they would have the sense to turn the instructions down, on the basis of lack of experience, given the importance of the matter. The same should apply to costs (although whether those of us who work in this field have already disqualified ourselves, in terms of having “sense”, is another matter).
In fact, the examples of a murder trial or catastrophic injury are perhaps misleading. Those types of claim are immediately obvious to identify, as are their importance and potential complexities. (Barristers also have the benefit of a clerk to act as an initial filter for cases out of the barrister’s depth.)
The position in relation to those who work in the field of legal costs is less straightforward. The ALCD’s stated aim is to have its members able to “deal with the vast majority of costs disputes without the assistance of counsel”.
From the perspective of those who act for the receiving party, there appear to be four key elements to competence:
1. The ability to recognise, when instructed to deal with a new case, that there may be problems with the retainer. This has many potential strands:
i. If the CFA pre-dates the revocation of the Conditional Fee Agreement Regulations 2000, is there a potential breach?
ii. If the CFA post-dates the revocation, is there still potentially a breach of primary CFA statute. (Yes, this is still a problem. I have already had one post-revocation CFA struck down as invalid by a Regional Costs Judge. The other week I had another case settle at the door of the court with the claimant taking a heavy hit to reflect the fact the CFA was potentially defective. There are plenty of others out there.)
iii. Are there potential problems caused by complicated rules surrounding retainers not made at the solicitors’ offices? How many of those working in the field of legal costs are really 100% up to speed on this?
iv. I previously mentioned Cook on Costs 2010, page 438, reporting on a Costs Practitioners’ Group meeting at the SCCO “whose view was that while Grade D fee earners might be able to draw straightforward bills of under £10,000, all other bills ought to be drafted by a Grade C fee earner, since costs are a technical matter, and matters such as the operation of the indemnity principle need more experience than a Grade D fee earner is likely to possess”. (I am note sure the Group really did say this but it is clearly Cook on Costs’ view.) The question of whether there ultimately has been a breach of the indemnity principle – eg is any given CFA invalid – may well be a complex and unpredictable question. However, the basic indemnity principle should not be complex to understand and, in my view, those who have not grasped the principle within the first few days of starting to be taught legal costs law have no place practising in costs at any level. Nevertheless, the fact that a work such as Cook on Costs expresses this view does suggest that there probably are some working in the field of legal costs who do not understand the indemnity principle (and I fear this may be correct) and really does beg the question as to what we are to judge “competence” by.
2. The ability to recognise a serious challenge when it is raised in points of dispute. At that stage it may be necessary to seek assistance from someone more experienced/specialised. Unfortunately, experience suggests that the seriousness of a challenge, to a retainer for example, is often not appreciated until a day or two before a detailed assessment hearing, when the matter is presumably referred up the chain. Worse, sometimes the seriousness of the challenge is not appreciated until the end of the detailed assessment when costs have been disallowed in their entirety. At this stage the receiving party has to purse the unsatisfactory course of trying to appeal the matter and bring in specialist costs counsel.
3. The ability to deal with any of the unexpected arguments that can arise during a detailed assessment hearing. This can arise in all types of advocacy and is the cornerstone of the “competent” advocate. This is not a skill that comes easily, except to a gifted few, and the limited amount of advocacy that the majority of us undertake in the role of law costs draftsmen brings limited opportunity to learn by experience. As a reader commented on a previous post: “the young barrister is in court almost every day, perfecting his craft. How can costs draftsmen compete?”.
4. The ability to properly draft a bill of costs. (I’m not just talking about claiming the correct VAT rate). Issues such as apportionment or division of costs, where there were a number of defendants, or where there are unusual costs orders, can be very complicated. Obviously, sometimes a bill is simply drafted in the most favourable way for the receiving party and arguments are awaited as to why it might be wrong. However, I am sure that bills are often drafted on a fundamentally wrong basis because the costs draftsman has not understood there is even an issue to address. When challenges are raised, the defect with the bill is still not understood.
Tomorrow we’ll look at “competence” from the paying party’s perspective.
Not long ago I commented on the perceived differences in the skills of specialist costs counsel compared with costs lawyers and concluded that the latter could not realistically expect to compete with the former. The comments that were made on the post suggest that I am not alone in this view.
You can therefore imagine the sense of irony I felt in relation to the telephone call I received a day or two later from a defendant solicitor client.
They had previously instructed specialist costs counsel to attend a detailed assessment hearing. Unfortunately, the bill of costs had been assessed for a few pounds more than the defendant’s offer and the the claimant had therefore been awarded the costs of the detailed assessment hearing.
Now, losing by a small margin is not exactly unknown in costs matters but there were one or two unfortunate features:
1. The defendant had made an offer before the bill of costs was drafted. Excluding the costs of drafting the bill, the defendant would have won comfortably on the offer (see Forward v Burton [2005] EWHC 90003 (Costs)). Counsel failed to argue this point.
2. The bill had been correctly drafted, at the time, claiming VAT at 15%. The defendant’s offer had been based on 15% VAT. No request had been made to amend the VAT claim in the bill. Apparently, or at least so the court subsequently ruled, the defendant’s counsel had agreed VAT at 17.5% when doing the calculations with the other side outside court. No attempt had been made to argue that consideration of whether the original offer had been successful should have been based on the VAT rate that applied when the offer had been made. This made the difference between winning and losing.
The barrister in question shall remain nameless but, from my limited experience of being against him in court, is a gifted junior (as specialist costs counsel almost invariably are). So what went wrong?
I suspect this was a typical example of the potential limitations and drawbacks of relying on specialist costs counsel. Or, at least, relying solely on costs counsel.
Specialist costs counsel are often fiendishly clever when it comes to arguing complex and novel points of costs law but often have much less of a grip on the rough-and-tumble of day-to-day disputes. Issues that are, or at least should be, bread-and-butter for law costs draftsmen are ones that costs counsel are often far less familiar with because they tend to be instructed to deal just with the big issues, such as CFA compliance, rather than run-of-the-mill detailed assessments. I know a number of costs counsel who would immediately agree that this is correct and often prefer to have a costs draftsman attend a detailed assessment with them to deal with the routine arguments. The drawback with this, of course, is the extra cost of having both attend with every chance the judge will only allow the fees of one.
So, I’m now going to have to refine what I said before. Costs counsel will generally be far more appropriate to instruct to deal with complex legal costs arguments and for cost appeals. Law costs draftsmen/costs lawyers may be better for routine detailed assessments and, sometimes, to assist costs counsel on cases that span both complex and routine issues (even if you shouldn’t expect to recover two sets of fees).
To add to the problem faced by instructing solicitors, they often have to rely on their costs draftsman/lawyer to advise them on whether there is indeed a problem complex enough to merit involving specialist costs counsel. I’ve seen enough cases to know that sometimes this is only appreciated during the middle of the detailed assessment when the costs draftsman/lawyer finds themselves floundering. Or worse, at the end of the assessment hearing when it has all gone horribly wrong.
I’ve just come across a bill of costs where a total of 28 hours 24 minutes (including 25 hours on one task) is claimed by the same fee earner for work undertaken on 4 March 2010. The fee earner is to be congratulated for his industriousness if not for the accuracy of his time sheets or basic arithmetic.
Chris’ suggestion on the comments section of a previous post for one of our Legal Costs Blog t-shirts to carry the slogan: "Team Claimant: helping solicitors work 36/8!" doesn’t sound so silly after all.
Those of you with a good memory will recall that I promised to tell you three occasions where I was wrong. This is the third in my public confessions.
I was wrong to argue that the Association of Law Costs Draftsmen was mistaken in its attempt to continue as approved regulator.
At the ALCD’s Annual General Meeting, 82 of the 84 members who voted backed the proposal to retain approved regulator status, with two abstaining. Of the 76 proxy votes received, 57 were in favour, 15 against and 4 abstained. With such a large number in favour the arguments must clearly be overwhelming. Only a fool continues to insist the world is round if everyone else knows it is flat.
I do still wonder though why more effort wasn’t put into explaining the overwhelmingly strong arguments in favour, in advance of the vote, given many ALCD members would be unable to attend the debate in person.
At the debate, ALCD President Matthew Harman, said: “If we vote against [the proposals], the association will die today”. That may well have been true, but it is not self-evidently obvious why that should have been so.
Wikipedia, which is always 100% accurate about everything, informs me that: “The ALCD was formed in 1977 with the object of promoting the status and interests of the profession of law costs draftsmen generally and ensuring the maintenance of the highest professional standards”. It was not until 1 January 2007 that the ALCD was granted authorised body status. It presumably achieved this by virtue of its previous success as an organisation representing the interests of law costs draftsmen. It is therefore far from clear why the loss of a status that had only been held for a short period of time in its history would suddenly have condemned it to immediate death or why it would no longer be able to continue as before.
Coincidently, I have recently been reading Irrationality by Stuart Sutherland. The book describes a well known psychological phenomenon called the “sunk cost error”.
“People who have made a sacrifice (in money, time or effort) in order to do something tend to go on doing it even when they stand to lose more than they gain by continuing. … The reluctance to stop a project in which large funds have already been invested is revealed by a remark of Senator Denton when he was urging the US Senate to continue a waterway project that was clearly not viable. He said, ‘To terminate a project in which $1.1 billion has been invested represents and unconscionable mishandling of taxpayers’ dollars’. What he could not see was that to continue the work would represent an even more unconscionable mishandling.”
Costs Lawyer magazine reported the views of the final contributor to the ALCD debate who “recalled how the move towards costs lawyer status began in 2003, and to retreat now would mean ‘seven years of work and cost down the drain’”.
Sunk cost error?
(This post was written before the council of the Association of Law Costs Draftsmen responded to the post Costs Counsel v Costs Lawyers (click link) and should be read in conjunction with that. I haven’t felt it necessary to amend the content of this post.)
I previously mentioned, in passing, that I am now a Costs Lawyer having attended the Association of Law Costs Draftsmen’s Costs Lawyer course. At the time I didn’t rush out to order a new set of business cards. With the benefit of hindsight, I think that was probably a sensible decision. Otherwise I might now be sitting at my desk with a pile of business cards and a large bottle of Tipp-Ex.
Now, although today’s post may be of some interest to those who work in the field of legal costs (and readers who fall into that category should feel free to comment) this post is really aimed at the more important category of those who instruct costs professionals to assist them in costs disputes. The question of what does it mean to instruct a Costs Lawyer, as opposed to any other category of costs professional, is an important one as there are about to be many more of us about.
As I explained on another occasion, the term “law costs draftsman” is available to all regardless of qualifications, experience or absence of any regulation from a recognised body. There are a wide number of other descriptions that those who work in this area choose to use – such as costs consultant or costs negotiator – sometimes deliberately chosen to distinguish themselves from “traditional” law costs draftsmen.
The ALCD exists as a body to train, regulate and promote costs draftsmen. However, membership is entirely voluntary. The ALCD was recently granted authorised body status which enabled it to grant rights of audience and the right to conduct costs litigation to Costs Lawyers.
Until very recently the Association of Law Costs Draftsmen has four classes of membership:
Students are registered with the Association and are required to complete one module of the training course within the first year of membership to remain as a student member. To enrol as a student applicants are not required to be employed in costs law.
Associates have completed the full training course consisting of three separate modules, attended the compulsory seminars and passed the examination of the Association at Associate level in addition they must have completed five years qualifying employment.
Fellows are full members of the Association who have qualified as Associates, passed the examination at Fellowship level and must have completed seven years qualifying employment.
Costs Lawyers are Fellows who have completed the Costs Lawyer course of the Association.
The Costs Lawyer course consists of attending a two-day training course. The course covers ALCD accounts rules, the Civil Procedure Rules and advocacy training. There is no test or other assessment process at the end. Time doesn’t allow me to go into a detailed critique of the course and so I will simply repeat this: it’s a two-day course with no test or assessment process.
Regardless of the suitability of granting rights of audience at Circuit Judge or High Court level and the right to conduct costs litigation on the back of a two-day course, it is therefore possible to attain Costs Lawyer status simply be turning up, sitting on the back-row of the lecture hall, sleeping throughout and waking up just in time to collect your certificate.
(I suppose a similar criticism could be made of the CPD points that many professional bodies, including the ALCD, require their members to acquire. You can lead a horse to water, but you can’t make it drink. You can lead a lawyer to a training course, but you can’t make him think. On the other hand, CPD is designed simply to keep qualified lawyers up to speed rather than represent the route for qualification.)
Given this, the real entry barrier to Costs Lawyer status is/was the requirements necessary to become a Fellow.
Not long ago I attended a detailed assessment hearing and was chatting with the other costs draftsman who was an Associate who had recently sat the Fellowship examination and failed. Now, my limited experience of this costs draftsman was that he was a perfectly competent costs draftsman. I’m not remotely qualified to comment on whether he was or wasn’t up to “Fellow” standard. However, unfortunate though it no doubt was from his perspective not to have passed, I was positively reassured by his failure. As I mentioned when I passed the same exam, I found the standard suitably demanding. The fact that the ALCD had failed a perfectly competent costs draftsman showed that they were trying to maintain appropriately robust standards. They had not set the level at such a standard that they would pass anyone who took the exam regardless of ability. This is what one would expect from a professional body. Those involved in organising and marking the examination papers (particularly Murray Heining) are to be thanked and congratulated for their hard work.
So now we come to the ALCD’s recent announcement concerning various changes to the ALCD structure. The first change is based on the conclusion that there are currently too many categories of ALCD membership. I’m not sure this is a pressing problem but fair enough. In future their will be only two tiers of membership: trainee costs lawyer and costs lawyer. Fair enough.
To achieve this aim, three changes are to be put into effect:
1. All existing Associates will automatically be upgraded to the status of Fellow.
2. Fellow status will cease to exist as of 1 January 2012.
3. In the intervening period, existing Fellows are required to attend the Costs Lawyer course.
This partly needs to be put into historical perspective. Older members of the ALCD should step in now if anything I write on this aspect is inaccurate. Going back far enough, I understand costs draftsmen could become Fellows of the ALCD simply by virtue of being members and having worked exclusively in costs for long enough. One reader of the Legal Costs Blog, informs me via the comments section:
“I missed the automatic rights to graduate to Fellowship (by reference by a District Judge) … those who have more recently become Associate Members have been able to automatically graduate to Fellowship status after two years of practice for free without even having attended an assessment hearing”
Another wrote:
“the ALCD many years ago [allowed] Fellowship by interview rather than study, just to boost its numbers to fall in line with the requirement to show they were largely representative of the whole costs industry”
Over recent years the ALCD training programme has become increasingly comprehensive and thorough. The standard required to attain Associate level had become, I am sure, much more demanding compared to the past where the training requirements were far less onerous. (Was there any formal training required if one goes back far enough?)
We therefore already had a situation where many had achieved Fellow status without having to show any actual skill or knowledge of costs law or had achieved this status by a less onerous short-cut. This is not, of course, to suggest that there are not some extremely gifted costs draftsmen among them. However, that is regardless of, not because of, their formal status.
The ALCD has now decided to allow a further large group to attain, in effect, Costs Lawyer status “on the cheap”. The 2009 membership figures for the ALCD had 270 Costs Lawyers, 170 Fellows and 131 Associates. The number of Costs Lawyers will therefore have more than doubled by 2012 simply as a result of members attending a two-day course.
What has not been announced, so far as I know, is what standard will be expected from Costs Lawyers in the future. I assume, although could be wrong, that the ALCD intends to retain some form of professional examination for future members. This raises two issues:
1. Will the future standard be set at the same level as that previously expected of Associates? If so, then this will represent a permanent “dumbing down” of standards.
2. Or, will those training in the future be expected to achieve what is currently Fellow standard? If so, why now allow a large number to slip through at a lower level? It would have been perfectly simple (some extra marking aside) to require all Associate members to pass the Fellowship examination and attend the Costs Lawyer course or be downgraded to Student status. Was avoiding upsetting some Associate members prioritised over quality?
I mentioned above the Associate who had recently failed the Fellowship examination. If he was previously considered not to have met the required academic standard expected from Fellows, why is it now considered appropriate to grant him an automatic route to Costs Lawyer status and the right to exercise section 27 and 28 rights?
Writing in Costs Lawyer magazine, ALCD Chairman Iain Stark wrote that “change is inevitable in order to ensure not only regulation but also high professional standards”. How does this change assist in terms of ensuring “high professional standards”? It is a clear-cut lowering of standards.
The ALCDs professed long-term aim is to achieve protected body status. This: “would mean that only approved members of the ALCD could represent parties in costs proceedings. Effectively, this would require the unregulated part of our profession to either join the ALCD or be precluded from participating in costs proceedings”. This always seemed a rather unrealistic goal but this automatic upgrading of Associates to Fellows (and thereby Costs Lawyers) must represent the final nail in the coffin for that dream. A professional body that is busily and consciously lowering its standards cannot possibly expect to achieve “closed-shop” status for its members.
The ALCD is focusing its efforts on meeting the regulation requirements of the Legal Services Act. Regulation is, or should be, focused on the all important needs of clients. As a marketing pitch, for the ALCD to be able to assert that its members may not necessarily be well qualified but, by golly, they are well regulated, may be thought to leave something to be desired.
Iain Stark wrote: “It is inevitable that these major changes will attract criticism from some members”. Judging by a number of the comments already posted on the Legal Costs Blog and private communications I have had with other members, that prediction has proved accurate.
I don’t think I’ll be rushing to frame my Costs Lawyer certificate.
The following comes from the Association of Law Costs Draftmen‘s council:
This is the collective response of the council of the ALCD to the posts made in response to the article Costs Counsel v Costs Lawyer [click link]. In view of the nature of the comments made, the Chairman intends also to make a number of comments in the forthcoming issue of Costs Lawyer.
The first point to make is that it is difficult to engage in discussions with people who are not willing to provide their names. It is not known, for example, whether the correspondents are members of the ALCD or not. Debate of this nature is best held in the forum of a general meeting of the ALCD or in signed correspondence. If the writers wish their comments to be given serious consideration, they are invited to amend their posts so as to state who they are.
The complaints which are made are: (1) that the rank of Costs Lawyer has been rendered insubstantial by virtue of the fact that it is too easy to obtain; (2) that the automatic conversion of Associates to Fellows diminishes the value of the latter; (3) that the ALCD is inappropriately proposing that Costs Lawyers should replace counsel; and (4) that Costs Lawyer is a rank which will instil a false sense of security in those who possess it, thereby causing Costs Lawyers to ignore the limits of their competence. The ALCD has considered and rejected all of these points. Some of the points are based on a mistake of facts (see below), and others fail to recognise that the ALCD is now an entirely different organisation to that which has existed previously.
The ALCD is leaving behind its status as a trade association and is becoming (or, more accurately, is creating) a regulatory body. The rights which it will regulate include rights of audience and rights to provide legal services, and may in due course include the right to practise reserved legal activities. This means 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.
The purpose of the regulatory body will be to regulate a single, unified rank of practitioner. This is the way that the vast majority of regulatory bodies work, and it is the only sensible way in which to regulate a profession which may be as small as only 1,000 practitioners. Whilst there is some truth in the notion of Associates and Fellows recently having been ‘upgraded’, this is happening not because of some extraordinary and spontaneous improvement in those persons’ knowledge and expertise, but is merely as the necessary consequence of the amalgamation of ranks.
A suitable standard of competence ought already to have been achieved by those who have attained the rank of Associate or Fellow of the ALCD; those who have attained that rank in recent years will have completed a demanding course approved by the DCA/Ministry of Justice leading to professional qualifications, and will have proven themselves to be competent by way of examination. The Costs Lawyer course is not and was never intended to be a process of by which supremely competent advocates are created; instead, it is merely a process by which persons who are already broadly competent can receive additional guidance about certain specific activities. It is merely one (small) part of the overall scheme of training, which includes CPD and the modular course. Indeed, students undertaking the new modular course will not need to sit the Costs Lawyer course at all because all relevant topics will already have been covered in depth in that new course.
Education does not end upon a qualification being attained. The ALCD is always eager to improve its training and if candidates have specific and constructive comments to make, the ALCD will take them into account.
At no stage has the ALCD ever suggested that Costs Lawyers should supplant counsel. The Chairman’s comments in the May Edition of Costs Lawyer magazine were intended to nurture a sense of drive and ambition, not to denigrate counsel. The ALCD endorses and encourages the notion that legal services should be provided by persons who are best suited to carry out the task, and from time-to-time this may well be someone other than a Costs Lawyer. Equally, the ALCD believes that the public will be best served by a profession that is able to deal with the vast majority of costs disputes without the assistance of counsel.
Once the ALCD has properly got its house in order regarding regulation, it will be able to turn its attention to other matters, such as promoting and recognising excellence. In this regard ALCD Training Limited is looking to form formal links with a university. In due course it is entirely possible that qualifications will be provided which will be a mark of excellence, but it will take some years before the profession reaches that stage. At the moment the ALCD is focussing on ensuring that there is a proper system of regulation, and that those who are able to call themselves Costs Lawyers are competent, trustworthy, insured and accountable.
Many thanks to the council for taking the time to share their views on this important subject.
The only point I’ll take issue with today is the idea that: “Debate of this nature is best held in the forum of a general meeting of the ALCD or in signed correspondence”, if this is intended to mean private signed correspondence with the council. In so far as the ALCD is moving from being a trade body to a regulatory body, significant changes to its structure are of wider public importance than simply being a matter of interest to its current members. Secondly, while the ALCD continues to aim for protected body status, such as to enable it to exclude non-members from costs proceedings, this is a debate to which all those who work in the field of legal costs and, more importantly, those who instruct costs professionals should be able to engage in.
I am inclined to share the view that less in the way of “anonymous” comments on the Blog would be a good thing. I regularly stick my head above the parapet when writing the Legal Costs Blog. To date, my office hasn’t been stormed by a pitchfork and flaming torch wielding mob. A public and open debate is always to be welcomed.
Sorry, I’ve got to sign-off now. There’s a loud banging coming from my front door.