16 February, 2011
Filed Undercosts draftsmen
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 Costs Lawyers have trained in every area of costs law? To this there are a number of answers:
• How do they know now? I’m a Costs Lawyer and I wouldn’t be remotely competent to deal with a legal aid matter (or at least not without no small amount of research).
• Members of the Bar may be “allowed” to accept instructions in any area of law once qualified but they are also under a professional duty not to accept instructions in a case if the barrister “lacks sufficient experience or competence to handle the matter”. Exactly the same should apply to Costs Lawyers (if it doesn’t already) and nothing further should be needed.
• If something else is considered needed, a simple rule could be introduced that Costs Lawyers may not act in an area of costs law where they have not completed the corresponding module.
What about the removal of entry to the ACL by examination route? Reintroduce. I do not accept that this route represented a “smear on the association’s history” as one reader recently suggested. Perhaps I am just saying that by virtue of the fact that this is the route by which I gained entry. However, it was no cakewalk. I would see the examination route mirroring my proposed four training modules. To gain Costs Lawyer status would require passing an examination based on at least one of the first three modules. To be able to exercise rights of audience would require passing the corresponding examination/test (probably something equivalent to that required for solicitors gaining higher rights of audience). Of course, it would be a matter for the CLSB to set the standard for entry by examination and I would encourage them to set it at an appropriately robust level.
(There seems every possibility that the CLSB will decide in any event that existing members should be subject to an advocacy accreditation process if they are too continue to exercise rights of audience.)
Now is the time to recognise that the “traditional law costs draftsman” is an important part of the costs world but in a (growing?) minority. The relaunching of the Association of Costs Lawyers is the ideal time to start to recognise this and have a membership structure that also recognises this. This may encourage the legal aid draftsmen to stay in the Association. It may also encourage the large numbers outside the Association that now is the time to consider joining.