21 July, 2010
Filed Undercosts draftsmen
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  EWCA Civ 1117, Hollins v Russell  EWCA Civ 718, Claims Direct Test Cases  EWCA Civ 136, Myatt v National Coal Board  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.