The defendant costs specialists

Posts made in February, 2011

Clinical negligence and Jackson

By on Feb 17, 2011 | 4 comments

Last week’s Law Society Gazette had an article on the implications of the Jackson proposals for clinical negligence claims. The proposal to end recoverability of success fees was criticised. The thrust of the objection was that “the proposal will not reduce costs but instead move a significant part of them from a guilty defendant to an innocent claimant”. Clinical negligence claims against the NHS fall into one of two categories: Those where the NHS has been negligent. Those where the NHS has not been negligent. The system of recoverable success fees means that the NHSLA pays for the cost of claims being brought against it where the NHS has not been negligent. This happens through the mechanism of having to pay success fees in cases where it has been negligent; the success fee being designed to compensate the solicitor for those cases that are lost. The criticism levelled in the article, and raised on numerous other occasions during the Jackson debate, is that ending recoverable success fees will mean that claimants have to pay success fees out of their damages and will thus be under-compensated. Surely there is no need for claimants to have to pay success fees at all. Claimant solicitors should simply stop bringing claims against the NHS when the NHS has not been negligent. That way there will be no unsuccessful claims. The article was happy to point out that savings could be brought to the current system if the NHSLA admitted liability more quickly when there had been negligence. Given how easy it apparently is to distinguish between a good case and a bad case, claimant solicitors should stop bringing the bad ones. With 100% success rates there will be no need for success fees to be charged and claimants can keep 100% of their damages. Everything in life becomes simple once the problem is looked at...

Read More

The future for Costs Lawyers?

By on Feb 16, 2011 | 15 comments

Following on from the last couple of posts, today I’m going to explore a possible future for a regulated costs profession. My own view is that the ACL’s training programme’s current modular structure should remain, with some possible adjustments, and a further specific advocacy module be added. Training for individuals should be adaptable for the needs of those joining. This is, after all, a vocational course. If a member worked for a volume negotiating firm they might chose just to take the General and Civil Costs module. If they also wanted to exercise rights of audience, they could choose to take that additional module. Those who worked in legal aid only could take the corresponding module. I don’t see this as being a case of dumbing-down. Indeed, this might be an ideal opportunity to review the decision to lower the academic standard of Costs Lawyers to the old Association standard from the previous Fellow standard. Post-Jackson there will an increased need for true expertise amongst those left, not less. There is no self-evident reason why Costs Lawyer status should not be granted to members on the back of this suggested model. I don’t know the first thing about legal aid law and they let me in as a Costs Lawyer. I can’t be the only one. There is no reason to suppose that Costs Lawyers of the future will need a broader knowledge of costs law than at present (especially in relation to a dwindling legal aid market). They may well need a deeper knowledge. One of the counter arguments to the above is that some other professions (eg the Bar) do indeed require those training to study areas of law where they probably will not actually practise (eg studying criminal procedure despite having already secured a pupillage in a purely Chancery chambers). To which my response is: so what? I fail to see any reason to impose unnecessary training/entry requirements on this profession. Costs Lawyers should be properly trained for the work they actually do. A second objection is how will members of the public (or more often the wider legal profession) know that a Costs Lawyer is competent to deal with any given area if not all...

Read More

Goodbye traditional law costs draftsmen?

By on Feb 15, 2011 | 3 comments

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...

Read More

Everyone a Costs Lawyer?

By on Feb 14, 2011 | 2 comments

There are a number of interesting developments occurring in the costs world at the moment, a number of which interlink. The Jackson implementation consultation and legal aid reform consultation both close today (although parts of Jackson are already being implemented by the courts) , this week sees the relaunch of the Association of Law Costs Draftsmen as the Association of Costs Lawyers (ACL), the Costs Lawyer Standards Board (CLSB) is being established to regulate Costs Lawyers, the ACL has announced plans to encourage the “5,000 people working as unqualified and unregulated costs draftsmen” to join the ACL, the recent publication of District Judge Hill’s article suggesting that the ACL had already – at least so far as advocacy is concerned – achieved protected body status (to the surprise of some), the ACL continues (presumably) to work towards achieving protected body status (in case DJ Hill proves to be incorrect), and upcoming elections to the ACL Council. The March 2010 edition of Costs Lawyer magazine explained the ACL’s action plan: “At present, the ALCD has four tiers of membership: Costs Lawyer, Fellow, Associate and Student. Eventually [emphasis added] the ALCD should emulate other regulators, having two membership levels: trainee and full” At the ALCD AGM in March 2010 the Association voted overwhelmingly in favour of the proposal: “The ALCD seeks the support of its membership to continue to meet its obligations as an authorised regulator, given the additional expense required to do so” Although “overwhelmingly” should be put in the context that only around 20% of eligible members bothered to vote (such is democracy). The May 2010 edition of Costs Lawyer magazine gave the ALCD’s chairman’s view that: “Mr Stark is convinced that Associate and Fellow levels need to be abolished, so that there are either students or costs lawyers. He does, however, appreciate that this change is going to have to be sold [emphasis added] to those Associates and Fellows who have no need for the rights costs lawyer status brings.” The July 2010 edition of Costs Lawyer magazine announced, with no obvious attempt in the interim to “sell” this change, that with immediate effect all Associates would be upgraded to Fellow status and by 1 January 2012 all...

Read More

Association of Costs Lawyers' Election

By on Feb 9, 2011 | 10 comments

The upcoming Association of Costs Lawyers’ election is turning into quite an interesting affair. (That’s a combination of words I never expected to write.) This does remind me of my ill-advised campaign of 1978/79 for classroom milk monitor. Goodness knows, I’m not one to bear a grudge after all these years, but I’d swear that Julie Simpson tampered with the ballot papers.  And she was the teacher. Oddly, half the debate to date seems to be focused on whether there should be a debate at all over the future direction of the ACL or whether such a debate should be in private. I have had comments posted on the Legal Costs Blog that there should be no criticism of the current direction of the Council because this is what members voted for at the last AGM. Implicit in this is that that there should now be no debate about the future direction despite there being an upcoming election. There was recently a general election and the government is now implementing what people voted for. That hardly precludes further political discussion until the next election and certainly would not preclude debate at the next election. (OK, maybe the last general election is not the best example of people simply getting what they voted for, but the general point hold good.) It’s been suggested on the Blog that the ACL members’ forum is the best place for any debate, if there is to be one.  Then, on the forum, someone suggested that that is not the place for such a debate. What I am conscious of in all this is that I am probably boring my regular readers (God bless both of you) to tears with all this talk about the ACL. This may be of some interest to that proportion of readers who are members of the ACL and they can join in the discussion further via the ACL members’ forum. The “manifestos” of other candidates are being made available there and I would be happy to answer any specific questions members may have about my views. This is an opportunity for members to clearly express their views on the future direction of the Association. Like all those running for...

Read More