Claimant solicitors work 36/8


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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.  

The ALCD was right all along


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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?
 

More Legal Costs Blog branded t-shirts


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Our newly launched Legal Costs Blog branded range of t-shirts has been an instant hit with orders flying off the shelf. We are delighted to be able to announce that a further selection of designs is now available.  As before, the t-shirts have our brand new Legal Costs Blog logo on the rear and one of the following slogans on the front:

“Actually, I think you’ll find it was Lord Scott who gave the dissenting judgment in Callery v Gray”

“The Legal Costs Blog is very educational. After reading it for 30 minutes I thought: ‘Well, that taught me a lesson'”

“If legal costs disputes are really so complicated why did God create costs muppets? Or was that the work of the devil?”

“What do you mean: ‘unreported decision’? It’s reported in Costs Law Reports

“My teachers said I’d never amount to anything. I’ve just qualified as a Costs Lawyer.  Who’s laughing now?

“Define ‘fraudulent claim for costs'”

“So many courts to go to, so many judges to annoy, so little time”

“It’s sort of like being an accountant but with less obvious value to humanity”

“Grade C fee earner? Can you be a little more specific?”

“I read the Legal Costs Blog. I’m none the wiser but I am better informed.

“Specialist costs counsel kick sand in the face of specialist tax counsel”

“No, I’m fine. I work in legal costs. I always look this miserable”

“Five out of four costs negotiators don’t understand fractions”

“Litigant-in-person you say? If you’ll just leave your telephone number I’ll make sure someone gets back to you”

“My boss read all 663 pages of the Preliminary Jackson Report plus appendices and all 557 pages of the Final Jackson Report and all I got was this lousy t-shirt”

“Who’s Lord Justice Jackson?”

A couple of the fee earners at Gibbs Wyatt Stone have kindly agreed to model one of our earlier t-shirt designs (thank you Bianca and Chantelle):

Model1
Model2
 
 
 

 

Revoke the Conditional Fee Agreements (Revocation) Regulations 2005


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I think we can all agree that the revocation of the Conditional Fee Agreement Regulations 2000 was a sad day for the legal costs world.

Regrettably, the Jackson Costs Review did not recommend that these Regulations should be restored. The proposal to end recoverability of additional liabilities has much to commend it but the attractions of the Regulations for a paying party do not need to be spelt out.

I’ve been mulling over a suitable mechanism for trying to restore the CFA Regulations 2000 and I think I’ve found a possible answer.

The new government has set up a new website and Deputy Prime Minister Nick Clegg says: “ Your Freedom website issues a ‘call to arms’ against pointless regulation and unnecessary bureaucracy. He wants to know how you would like to see the government balance the rights of the citizen with the laws of the state”. The website invites members of the public to suggest unnecessary rules and regulations that should be repealed.

This website has already produced a number of ideas in relation to CFAs (click link).

Now, this website is really designed to reduce unnecessary rules and regulations but I think I have found a way around this. I have therefore proposed that the Conditional Fee Agreements (Revocation) Regulations 2005 should themselves be revoked. This would presumably reinstate the CFA Regulations 2000. And all in the name of reducing regulations.

If enough defendants and insurers support this proposal we can produce an overwhelming momentum. Make the dream a reality. Vote here.
 

Association of Law Costs Draftsmen shake-up


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(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.
 

Costs Counsel v Costs Lawyer – ALCD Responds


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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.