27 July, 2010
What grade of fee earner can be justified for a law costs draftsman drafting a bill of costs?
Cook on Costs 2010, page 438, says this issue was discussed at 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."
This suggests that the Costs Practitioners' Group was of the view that it is acceptable for smaller bills to be drafted by fee earners who do not understand the indemnity principle. It also suggests that student members of the ALCD who have had up to five years qualifying employment (and would therefore be the equivalent of a Grade D fee earner) might not understand the indemnity principle. If true, something would have gone seriously wrong with the ALCD training and the previous five years work.
I'm still waiting to see a bill of costs that comes with a disclaimer that the person who drafted it does not understand the indemnity principle and no reliance should therefore be placed on the signature to the bill. (Though no doubt routinely true even with very large bills.)
Cook on Costs does not identify which Costs Practitioners' Group meeting is being referred to so the Legal Costs Blog did its own fearless investigative journalism.
The meeting referred to appears to be that of 8 March 2007. The minutes can be viewed here. Michael Cook is not listed as one of those present.
The minutes read:
"Mr Hocking [from the Association of Law Costs Draftsmen] outlined the current position. For run-of-the-mill cases in the provinces, bill drafting was normally allowed at grade “D” fee earner level, whereas advocacy was generally allowed at grade “C”. In larger and/or more complex matters, grade “C” might be achieved for bill drafting and grade “B” for advocacy which would be appropriate for Fellows of the Association of Law Costs Draftsmen, some of whom are also qualified solicitors or FILEX. The meeting agreed with this."
There is absolutely no mention of a £10,000 limit.
Interestingly, the Supreme Court costs practice direction states:
" For a larger bill [over £10,000] the amount allowed for time reasonably spent in drafting the bill is calculated as a multiple of the relevant hourly rate for a Grade D fee earner (unless a claim for a higher grade is justified)."
Following on from my last post, and in anticipation of this post, one reader raised the question as to what rate is appropriate for the fee earner who "punches above his/her weight". "Suppose the unqualified and therefore Grade C fee earner is actually highly skilled and routinely handles Grade A work. What rate should be paid then?"
A very good question. Almost the kind of question I would expect a member of the judiciary reading this Blog to anonymously post.
The full answer to that is a bit too long for this post. In relation to substantive litigation or advocacy at detailed assessment hearings I can see strong arguments for allowing a fee earner to recover higher hourly rates than their qualifications/experience strictly justifies, depending on their skill and the nature of the case being dealt with. However, when it comes to drafting routine bills of costs I just don't buy the idea that this is ever anything other than Grade D work.
Its very kind of Cook on Costs to try to pretend that anything other than the most complex bill of costs (and I mean complex rather than simply ones with a large amount of work claimed) justify anything other than a Grade D fee earner, but it is simply not true. If your law costs draftsman is charging you Grade C rates or above for anything other than unusual claims you are being ripped-off.