The defendant costs specialists

Posts made in October, 2010

Rights of audience of law costs draftsmen – Part 2

By on Oct 12, 2010 | 1 comment

This follows on from yesterday’s post concerning rights of audience of law costs draftsmen. You will need to read that first to avoid any confusion over what follows. (The ALCD was granted Authorised Body Status by The Association of Law Costs Draftsmen Order 2006 (S.I. 2006 no 3333) which came into force on 1st January 2007. As a result the Association may grant rights of audience and rights to conduct costs litigation to its members. Such members hold the title “Costs Lawyer”.) Advocacy in detailed assessments was previously governed by the Courts and Legal Services Act 1990. This was repealed and replaced by the Legal Services Act 2007 (“the Act”) on 1 January 2010. Advocacy is treated as being a “reserved legal activity”. Costs Lawyers are authorised persons who can undertake the reserved activity of advocacy. The Legal Services Act 2007 also allows “an exempt person” to perform certain reserved activities. In the words of District Judge Hill: “An exempt person, see section 19, is a person determined as such by paragraph 1 of schedule 3 to the 2007 act. By this provision, the 2007 act recognises, as did the 1990 act, that, in certain circumstances, a person who is not authorised in accordance with the statutory scheme to exercise rights of audience may nevertheless do so. The combined effect of sections 13 and 19 and paragraph 1(7) of schedule 3 to the 2007 act is to provide that, in certain circumstances, a person whose work includes assisting in the conduct of litigation is an exempt person for the purpose of exercising a right of audience.” The crucial section of the Act appears to be paragraph 1(7) of Schedule 3 which deals with “Exempt Persons”: “The person is exempt if – (a) the person is an individual whose work includes assisting in the conduct of litigation, (b) the person is assisting in the conduct of litigation – (i) under instructions given (either generally or in relation to the proceedings) by an individual to whom sub-paragraph (8) applies, and (ii) under the supervision of that individual, and (c) the proceedings are being heard in chambers in the High Court or a county court and are not reserved family proceedings.” The...

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Rights of audience of law costs draftsmen – Part 1

By on Oct 11, 2010 | 0 comments

The following article will be of interest to the wider legal costs profession, those who instruct law costs draftsmen and particularly to independent costs draftsmen. I am aware that members of the judiciary also read the Legal Costs Blog. They are likely to find this article particularly useful as they are likely to see an explosion in challenges in relation to those who appear before them. The May 2010 edition of Costs Lawyer magazine contained an interview with Association of Law Costs Draftsmen (ALCD) chairman Iain Stark. It was reported: “Mr Stark feels more immediate progress might be had in persuading the courts not to hear costs draftsmen without rights of audience. ‘The judiciary promotes the idea of professionalism among costs draftsmen, so it is has to start there. The mythical temporary employee was done away with in Crane’. He is especially puzzled that the practice continues in the Senior Court Costs Office. Mr Stark recognises it is also up to ALCD members ‘to stand up [in court] and say “he’s not a member”’.” I had been planning on writing a response to those views at some point but the matter has now shot to the top of the costs agenda. A recent article in the Law Society Gazette, from District Judge (and Regional Costs Judge) Hill, analysed the rights of audience of non-solicitor agents (see link). An edited version of the article has just appeared in Costs Lawyer magazine. The conclusion of the article, which was itself based on a recent judgment in York County Court, was that a non-solicitor agent had no right to appear when the court is sitting in chambers. Although the article was not concerned specifically with costs proceedings, it is clear that this would apply equally to law costs draftsmen who are not employed directly by a firm of solicitors and who are not qualified Costs Lawyers. Costs Lawyers have rights of audience by virtue of being regulated by the ALCD.  For the rest of this article I will use the term “costs draftsmen” to refer to those who are not Costs Lawyers. We need to go right back to basics here. Rights of audience were previously governed by Section 27 of the...

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Legal Costs and VAT – Skeleton Argument

By on Oct 7, 2010 | 12 comments

The issue of the correct VAT rate to apply to claims for legal costs appears to be continuing to cause law costs draftsmen and the courts all kinds of difficulties.  With VAT about to increase to 20% it is time for defendants to put an end to this nonsense. Gibbs Wyatt Stone has therefore put together a skeleton argument that should do the trick.  It is available to view, along with links to all the relevant guides, on the VAT section of Legal Costs Central.  You can have this for free (although standard Disclaimer obviously applies). Let’s see if there are any claimant representatives out there who are brave enough to stick their necks out and produce a skeleton argument in response....

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Leeds provisional assessment pilot – Update

By on Oct 6, 2010 | 1 comment

I previously expressed some concern as to whether those judges dealing with provisional assessments in the new Leeds assessment pilot would be sufficiently familiar with the minutia of legal costs law. Those concerns have been somewhat reduced as I understand that all the provisional assessments will be done by one of two Regional Costs Judges (District Judge Bedford and District Judge Hill). Nevertheless, can they really both be expected to be walking legal costs encyclopaedias? In one recent set of Replies I received the following cases were referred to: Bailey v IBC Vehicles Ltd, Cole v News Group Newspapers, Carpenter v Mid-Kent Healthcare Trust, William Patterson v Cape Darlington & Ors, Mattel Inc & Ors v RSW Group plc, Ghannouchi v Houni, Francis v Francis and Dickerson, Smith Graham v The Lord Chancellor’s Department and Crane v Canons Leisure Centre. I am going to hazard a guess and suggest that there is at least one case in there that the judges will not be familiar with. (Actually, it was fairly clear that the author of the Replies was not familiar with all these cases.) This sends us back to the problem that costs pleadings in the pilot courts are likely to explode in length as parties feel it essential to do more than simply quote the name of a case. The second interesting issue is what happens if the pilot is a success? We know it is intended to be rolled out nationally if successful. If so, will it be only Regional Costs Judges involved? The danger would be that a successful pilot scheme undertaken by two experienced Regional Costs Judges is then extended nationally and provisional assessments are undertaken by judges who may know little or nothing about costs, resulting in chaos. The answer would be to introduce what I have been advocating for years but what did not seem to interest Lord Justice Jackson, namely one or more regional Senior Courts Costs Offices. In a post-fast-track fixed fee world (that is surely rapidly approaching) there would probably need to be only one extra court in the North to compliment the one in London. Let’s give legal costs the judicial expertise it demands....

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