Costs Counsel v Costs Lawyer

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A recent edition of Costs Lawyer magazine contained an interview with the Association of Law Costs Draftsmen’s new chairman Iain Stark.

In the interview he argues for costs lawyers to reclaim advocacy work on the basis that: “We created the mini costs industry for barristers. That was our own fault, predominantly because we didn’t have our own rights of audience. … We’ve got members who should be out there competing against barristers for these big cases and saying to their clients, ‘Don’t instruct a barrister. I can do this’.” [Ironically, underneath this interview was an advertisement from a set of chambers specialising in costs. I wonder if they paid more or less to have an advertisement placed in that position.]

At the risk of being accused of being a contrarian (me?), I’m not sure I agree with this analysis of the growth of specialist costs counsel.

I’ll start by making two things perfectly clear:

1. Many costs draftsmen are highly accomplished advocates.

2. A formal background or training in the law is not a prerequisite to becoming a skilled costs draftsman. Many will have learnt on the job and many will argue that this is the best form of training.

The big costs cases of recent years have almost all found their way to at least the Court of Appeal (eg Callery v Gray [2001] EWCA Civ 1117, Hollins v Russell [2003] EWCA Civ 718, Claims Direct Test Cases [2003] EWCA Civ 136, Myatt v National Coal Board [2006] EWCA Civ 1017, etc). In fact, the rights of audience of costs lawyers extends only up to High Court Judge or Circuit Judge level. Costs lawyers still do not have the same rights of audience as barristers and have no automatic right to appear in the Court of Appeal in the “big cases”.

In the past, and long before law costs draftsmen obtained automatic rights of audience via the costs lawyer route, costs draftsmen happily appeared in the courts on detailed assessment. This was during a period when legal costs law was relatively straightforward. Most disputes came down to little more than arguments about the number of letters written or time claimed. The “traditional” law costs draftsman was more than happy to deal with this type of case.

The landscape then totally changed with the introduction of the Access to Justice Act and the dawn of the Costs Wars.

Not only did CFA challenges considerably raise the stakes (having a bill totally wiped out is on a totally different level to simply making some inroads into the quantum), but the law in this area became infinitely more complex. Indeed, arguably, much of the mini costs industry was created by the ingenuity of specialist costs barristers coming up with ever more complicated lines of attack. Many “traditional” costs draftsmen, particularly in the past, will have had no formal legal training and would have been totally incapable of grappling with some of the more complex costs arguments.

Has the position radically changed in recent years? I come across various costs draftsmen from time-to-time, some ALCD members some not, who are incapable of arguing serious points of law. Many arrive at court without a copy of the White/Green Book or any copy of the CPR. I am no longer surprised at the total inability of some costs draftsmen to understand what a judgement says or doesn’t say (Hollins v Russell – disclosure of CFAs and “genuine issue” anyone?).

It remains routine for specialist costs counsel to attend detailed assessments to deal with the “difficult” legal points and for a costs draftsman to also appear in the same case to deal with the rough-and-tumble of the rest of the assessment (doubling the cost). This has nothing to do with rights of audience. It is an acknowledgment that the barrister will be better able to deal with the “legal bits” and the costs draftsman deal with the rest.

The pattern becomes even starker in costs appeals. Other than appeals just to costs judge level, my opponents on costs appeals are invariably specialist costs counsel. Again, this has nothing to do with rights of audience. Not being a costs lawyer until recently, I did not have automatic rights of audience in higher courts. However, I have never previously found this to be a bar to appearing. The court invariably grants permission to appear.

On occasions, the reliance on counsel can be understandable on the basis that a claim can move into areas of law (say consumer credit agreements) that are not directly costs related. Those who practice solely in the field of legal costs may find themselves outside their comfort zone (myself included) when a totally new area of law arises. Counsel may be far more comfortable dealing with a combination of legal areas, not all of them costs related.

The second reason why reliance is placed on barristers, as opposed to costs lawyers, is no doubt due to their perceived advocacy skills. Again, although many “traditional” costs draftsmen may have been happy to appear in chambers before a judge making limited submissions as to the number of letters written or whether 36 minutes was a more reasonable period of time to spend reading a medical report rather than 48 minutes, the world of costs has moved on.

Regional Costs Judge, Chris Lethem, at the ALCD National Conference, discussed key skills for an advocate. Some of this guidance was repeated in Costs Lawyer magazine. The Senior Courts Costs Office, in advance of this talk, asked him to cover some of their bugbears. These included:

• You should address your submissions to the judge, not to each other; and
• Do not tell the court that you think the base costs are entirely reasonable, or anything prefaced with “in my opinion”. “Your opinion”, concluded Judge Lethem, “is irrelevant”.

The fact that these observations even needed to be made is revealing. Barristers have already been taught this kind of thing. They don’t need to be addressed on these issues at their AGM.

Of course, the impact of skilled advocacy on detailed assessment is often of limited value. Many cases are decided long before either advocate has opened their mouth and/or regardless of the submissions made. If cases were decided based solely on the quality of the advocacy, I may have won many cases I did not. (Conversely, I may have also lost a number I managed to win.)

Advocacy skill is therefore often largely irrelevant in routine disputes concerning time claimed, etc. However, once one moves into the area of difficult points of law, a skilled advocate can make a real difference.

I have now attended the ALCD’s two-day Costs Lawyer course. A whole day was spent on advocacy training. Enough for those who have no previous advocacy training to compete with the Bar?

None of this is to suggest that using specialist costs counsel is a necessary alterative to good costs draftsmen. The question will come down to the issues at stake, the skill of the individual and the relative cost compared with instructing counsel. The idea of many costs draftsmen (up to and including many costs lawyers) saying “I can do this” in big cases fills my heart with dread. Some can. Most probably can’t and fortunately don’t pretend otherwise.

The ALCD has already made huge advances with its training programme. I have previously commented on the high standard of the Fellowship examination. To properly compete with barristers, the ALCD (whose members of course now include a number of practising barristers) needs to be confident that its members (at least at costs lawyer level) are as skilled, both legally and in terms of their advocacy, as barristers. That is indeed a challenge for the new chairman. There is no reason to suppose the task is out of reach but it will require some brave decisions.

* This post was written before the ALCD announced its decision to automatically upgrade Associates to the status of Fellow.

Law costs draftsman

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A further definition from The (Alternative) Legal Costs Dictionary:

Law costs draftsman n. a lawyer concerned with quantifying the legal costs of a case. A costs draftsman is to the legal profession what a train spotter is to the world of professional sportsmen. Similar to an accountant but without the glamour or dress sense.

We’re all doomed

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I am going to do something that does not come naturally to me. I have going to admit I was wrong. Worse than that, I am going to have to admit to being wrong about three things. This whole process is so traumatic that I am going to have to stagger this over several days.

I was wrong when I predicted that the new RTA Claims Process would not happen (see post) either because agreement would not be reached in relation to the rules or because the Jackson Costs Review would torpedo it.

Yet, here we are with the process due to launch today.

There are those who are already taking bets on how quickly the new "portal of doom" will crash.

I’m sticking with my other prediction that the process will produce a flood of satellite litigation, a view shared by Master Hurst who said at the Association of Law Costs Draftsmen’s AGM that the process is so complicated it would generate satellite litigation for "the foreseeable future".  So good news for law costs draftsmen and other costs professionals at least.

Legal Costs Central

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The internet contains an enormous amount of legal costs law information, much of it free. Unfortunately, it tends to be scattered throughout the web or buried deep within specialist sites. Wouldn’t it be great if all this information could be easily accessed? Well, of course it would be which is why the Legal Costs Blog is delighted to announce the launch of Legal Costs Central. This is an intuitive webpage giving you direct links to all that legal costs information out there.

So it’s just a links page then? So what?

No, this is nothing like other link pages that some law costs drafting firms have on their sites that have a handful of links to, for example, the homepage of the Association of Law Costs Draftsmen or the Law Society. This is a serious tool which … oh you’ll just have to look for yourself to see what I mean:

We’ve even included a Google search tool so there is no reason why costs practitioners shouldn’t make this their homepage. With everything just a couple of clicks away think of the hours of time saved.

The site does not attempt to cover criminal or legal aid costs law. It is also not an attempt to create a directory of everything costs related on the internet. There are an enormous number of interesting costs articles, podcasts, webinars, etc out there and this does not attempt to create a directory of all that material. An interesting project for another day?

Please read the Disclaimer before using Legal Costs Central, although it shouldn’t really be necessary to spell this out. Don’t dabble in legal costs unless you know what you are doing (I wonder if the judiciary should made to follow this rule).

This should be treated as something of a work in progress at the moment. We are planning on making further enhancements in coming weeks. If you have any suggestions for other useful links or spot any broken links please drop us an email via the Contact page.

Costs draftsmen’s late Christmas present

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A number of readers no doubt work in the area of RTA claims.  Some at the front-end of the claims process dealing with the substantive claim, others at the tail-end of the costs side.  Hopefully, those readers will therefore be aware that we have a new claims process for low value RTAs starting on 6 April 2010 (and if they didn’t know they are in real trouble).

What some of the more observant may have noticed is that despite being only a few weeks away from the start date we still have no published rules as to how the scheme will work.  Quite how this shocking state of affairs arose is a mystery.  However, finally, some progress is being made.  The Ministry of Justice has written to a number of specific bodies:

“The Civil Procedure Rule Committee approved the drafts of the documents listed below on the 12th February 2010.  These documents are in draft form until: 

(1) the Statutory Instrument has been signed by the Civil Procedure Rule Committee and the Minister and then laid before Parliament, and

(2) the practice direction making document has been signed by the Minister and the Master of the Rolls.   

It is expected that the Statutory Instrument will be laid before Parliament by the beginning of March.  In view of the familiarisation, training and system adjustments that practitioners will need to undertake in order to be compliant with the new process we have decided [how gracious of the powers that be] to circulate these rules etc in draft form.  Please circulate to your members as appropriate.”

In case these haven’t yet made their way to you, the Legal Costs Blog and Gibbs Wyatt Stone have provided a link to all the draft documents here: RTA Claims Process.  Read them and weep.  No surprise that the final report in the Jackson Costs Review commented on the new process in this way: “I have two concerns about the new process in its present form.  My first concern is the sheer complexity of the process.  Over 80 pages of new material will be added to the rule book, in order to deal with the simplest category of litigation which exists, namely low value RTA claims where liability is admitted.  I fear that collectively these procedures might possibly open up a new theatre for the costs war.”

And that, of course, it the late Christmas present for costs draftsmen.  Jackson LJ may be intent on killing off the volume costs work but the Ministry of Justice, and those involved in formulating the new rules, have given it a massive boost.  

Time allowing, I’ll have plenty more to say about this new RTA claims process.   


Specialist costs counsel

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The 2010 edition of the Association of Law Costs Draftsmen’s diary contains advertisements from six barristers’ chambers holding themselves out as specialists in legal costs matters.  Five of these give the names of the barristers in their costs teams.  The number of named individuals totals 49.  There are a number of other chambers who have costs specialists who did not advertise in the diary.  So how many specialist costs barristers are there?  There were a large number of names I did not recognise and it may be that there is a certain amount of wishful thinking going on as to who can be properly described as a costs specialist.  Alternatively, it may be that they operate in areas of costs law that I do not deal with and our paths therefore do not cross.

A number of years ago, and before there were anything like the current number of specialist costs counsel, a senior judge (can anyone remind me who?) expressed displeasure about the fact that the complexity and number of legal costs disputes had reached the level that some lawyers were basing their whole career on costs matters.

Quite how many will be left in the post-Jackson world remains to be seen but their prospects are probably better than those of a large number of costs draftsmen.

Click image to enlarge: 

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Costs draftsman – A secure career

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I recently came across a job advertisement for a trainee costs draftsman with the following wording: “Are you seeking a career option that is secure? Would you like to work in a niche market? Would you like to work in the field of Law Costs?”.  Secure?  Have I missed something?

Pro bono legal costs work

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I recently received a telephone message asking if my firm did pro bono work. (The answer is “no”, by the way.)  But this did cause me to pause for thought as it coincided with a report in the Law Society Gazette that: “The value of pro bono work done annually by lawyers has soared to more than £400m. …  That figure does not include the contribution made by in-house solicitors or other legal professionals such as barristers or legal executives”. 

You wouldn’t telephone a plumber and ask if he did pro bono plumbing.  I doubt you would do this regardless of how poor you were or how bad the leak was.  So why are lawyers viewed differently?  Why are some lawyers prepared to give so much of their time for free?  Undoubtedly, a lot of pro bono work is undertaken by lawyers working for Magic Circle firms or leading barristers who earn more money than they can spend and feel the need to “give something back”.  However, this is not the whole answer and there are clearly those on far more modest incomes who also give their time freely.  Well done you.

There are probably a number of legal aid lawyers out there who feel they would be better off switching entirely to pro bono work.  The pay would be about the same but there would be far less forms to complete.

If there are any costs draftsmen out there who do pro bono work, let us know.

The art of good law costs drafting

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The Law Gazette has reported the case of a Norfolk solicitor who charged clients based on the weight of their files, “by weighing the files in his hand”, and was struck off after a hearing before the Solicitors Disciplinary Tribunal. You mean there’s another way to cost a file?

Jedhead v Horsehair wigs

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A recent article in the Evening Standard (click link) newspaper reported on the spread of the “Jedhead”.  This is the sticky-uppy hairstyle sported by Jedward, the twins from the X Factor.  The article claimed the “style crosses boundaries of age, gender, sexuality and taste”.  I have no problem accepting the first three in the list but can’t accept the last.  All those sporting the Jedhead share the same taste: bad.

I have yet to see evidence that this hairstyle has infected the legal profession but a bottle of champagne to the first solicitor, barrister or costs draftsman who can produce a picture of themselves about to enter court displaying such a haircut. Horsehair wigs don’t count (unless heavily gelled and sticking up).