15 February, 2011
Filed Undercosts draftsmen
Some of you may know the story of the boy who was appearing in a parade. His proud watching mother is heard to say: “Ooh look - our Archie's the only one marching in step”.
Laughs all round.
Actually, the mother may not be as silly as she sounds. For a number of years I had to march on a daily basis to a full marching band. (By a strange coincidence I believe Lord Justice Jackson marched to the same band.) Now, I have no understanding of things musical, but I did learn that the big drums in the band beat out not only the pace of those marching but also dictate the “left, right” part. It is therefore perfectly possible to be the only one marching in step.
I always console myself with this thought when finding myself in a minority of one.
This post continues yesterday's on the subject of whether all Costs Lawyers need to fit into the same mould.
A number of years ago, during the heyday of the costs negotiating industry, the ALCD, as it was, held discussions with a number of the major costs negotiating firms to explore the idea of employees of those firms joining the Association. This appeared to be a sensible initiative. This was back at the height of the costs wars and before the introduction of the predicable costs regime when that part of "industry" was at its peak. The Association had a chance to become truly representative of a far larger proportion of the costs profession/industry than it then was and there were potential benefits to the costs negotiating firms of an Association that was, at the time, beginning to introduce a proper costs training programme. I attended a joint meeting with other costs firm and representatives from the Association as I was, at the time, a senior manager with one of the major costs negotiating firms. Although the discussions were positive, nothing further happened.
When the issue was subsequently resurrected I wrote to the Association and the letter was subsequently published in the ALCD Journal (see letter). This is all the way back in June 2003. The thrust of my letter was that the training programme required at the time for those joining the ALCD was too wide for those who practised in the cost negotiating industry. The ALCD training programme required proficiency in all types of costs work (including for example legal aid and solicitor/own client work) whereas cost negotiators tended to work in the limited area of between-the-parties costs disputes (and predominantly personal injury at that).
From memory, and others may be able to correct me on this, the Association considered whether to introduce a reformed training programme to take into account the more limited needs of non-traditional costs draftsmen. I believe that a decision was taken to make concessions for those costs draftsmen who undertook just legal aid work but the training requirements were otherwise left unaltered. Presumably, and this is where I simply speculate, the members of the Association as the time (or at least the Council) decided that the Association should remain one designed for traditional independent law costs draftsmen and that alterations of the kind I had suggested would change, for the worse, the nature of the Association.
The Association therefore took the decision to remain a body exclusively for what I will term “traditional law costs draftsmen”. It also meant, of course, that the large numbers working in costs but not as “traditional law costs draftsmen” did not join. As at 31 December 2009 there were 764 members of the ALCD. The Association estimates there are currently “5,000 people working as unqualified and unregulated costs draftsmen”. (It is not clear whether this includes the large number who work in-house for firms of solicitors and are therefore regulated but not by the ACL.)
When the ALCD was a purely representative body, it could choose who it wanted to represent and how. Now the ACL is regulated by the CLSB. If the ACL is to encourage, as it has set out to do, the other 5,000 people to join the Association, or if the ACL were to achieve protected body status and the whole costs profession was thereby required to join, or if the profession has had protected body status all along and it is only a question of time before this is appreciated and non-members come flocking to join, then I am of the view the question of what a costs draftsman/costs lawyer is needs to be re-examined.
This is particularly import given the recent decision of the ACL to scrap the Fellowship entry route to membership and require henceforth all new members to complete the full modular training course.
If the CLSB is, or is to become, the gatekeeper to entry to the costs profession, what should this mean? Who should they be letting in and who should they be keeping out?
If there ever was a time when the majority of those working in costs were all “traditional law costs draftsmen”, I would suggest that time has long gone. Although there are no doubt many who would still fall into that category, I would suggest they are a minority. A far larger number will deal exclusively in a limited area, such as between-the-parties costs or legal aid.
The ACL modular training programme, from a quick glance at its website, is broken down into the following three modules:
• General and Civil Costs.
• Solicitor and Client Costs, Special Courts and Tribunals.
• Public Funding/Legal Aid.
Each of these modules is therefore now compulsory for new members. The cost of each module is about £1,000. As a general proposition, I would suggest the ACL is going to struggle to increase membership on a voluntary basis amongst established costs draftsmen given the combination of cost, time commitment and the possible requirement to study an area where one has no intention of practising.
Frankly, given the likely legal aid shakeup, in a couple of years time there will be more people in the country who can say they were once a contestant on Big Brother than will be able to say they currently undertake legal aid costs work. It is entirely sensible to retain a module for this area for those who work or want to work in it, but I see no need or advantage in making it compulsory for the majority who do not and will not. Indeed, if the legal aid shake-up is half as bad as feared, the last thing the profession needs is more people trained in this area.
The Association should celebrate diversity amongst it members and the CLSB should accommodate it. It’s possible, for example, to become a barrister (or at least it was when I was training) having never studied family law. Is it right for it to be impossible to become a Costs Lawyer without studying legal aid costs? The CLSB, if it is to regulate the whole costs profession, should do so by recognising the reality of the composition of the wider profession and not be constrained by a rather outdated ALCD model which was designed to cater for a small sub-section of those who worked in costs.
Tomorrow I’ll explore the alternatives.