The defendant costs specialists

Discretionary rights of audience?

By on May 23, 2011 | 9 comments

The debate as to whether non-Costs Lawyer costs draftsmen can appear before the courts on detailed assessment continues to rumble on. Although a further detailed analysis of this issue will have to wait for another day, I will briefly pick-up on some observations recently made in an article in Costs Lawyer magazine on the subject.

This reviewed a recent judgment from His Honour Judge Holman in Bank of Scotland v Whiteside (16 February 2011). The issue in that case was whether the court should grant a debt collection agency, which was not a firm of solicitors, the right to conduct litigation. That judgment also considered the earlier Court of Appeal decision of Clarkson v Gilbert [2000] 2 FLR 839. In that case the issue was whether it was appropriate to grant the claimant’s husband, who was not a qualified lawyer, rights of audience in relation to the claimant’s case. The court determined that it should only exercise its discretion to permit him to act if there was a ‘good reason’.

Judge Holman had noted: “Perhaps most significantly, the right to conduct litigation will only be granted in exceptional circumstances to those who are acting for reward”.

Interesting though this decision is, I would suggest it has no direct relevance to the issue of costs draftsmen’s rights of audience.

The Bank of Scotland and the Clarkson cases were dealing with the question of whether the court should exercise its discretion to grant rights of audience or rights to conduct litigation to those who otherwise did not have them. That was an issue of discretion and the conclusion was that the court would be slow to exercise such discretion in favour of the unauthorised company or individual.

In relation to detailed assessment hearings, the position was previously governed by section 27 of the Courts and Legal Services Act 1990. Law costs draftsmen, not otherwise having rights of audience, were permitted to appear by virtue of falling within s27(2)(e):

“where –

(i) he is employed (whether wholly or in part) or is otherwise engaged to assist in the conduct of litigation and is doing so under instructions given (either generally or in relation to the proceedings) by a qualified litigator; and

(ii) the proceedings are being heard in chambers in the High Court or a county court and are not reserved family proceedings.”

The matter is now governed by the Legal Services Act 2007 and non-Costs Lawyer costs draftsmen are permitted to appear by virtue of being ‘Except Persons’. Paragraph 1(7) of Schedule 3 defines ‘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.”

Under both acts the costs draftsman was and is entitled to act by virtue of being properly instructed by a solicitor in relation to a hearing in chambers. There is no question of the court exercising its discretion one way or the other. The ‘right’ to appear is automatic if the conditions are met. This contrasts entirely with the position in Bank of Scotland and Clarkson where there was no instructing solicitor. An unrepresented claimant was seeking to have an unauthorised company or person exercise restricted rights.  In that situation the court’s discretion came into play.

A costs draftsman acting for a litigant-in-person would equally have no ‘right’ to appear and would have to ask the court to exercise its discretion.  It is very probable that persmission would not be given.

Of course, none of this answers the question as to whether rights of audience in detailed assessment hearings should be limited to Costs Lawyers. But, as the law stands, no such restriction applies.

    9 Comments

  1. Must say, I can’t see the ‘debate’ here. Solicitor’s clerks and costs draftsmen have always had these rights of audience and I see no need to restrict them. If I instruct a ‘non costs lawyer costs draftsman’ (what a mouthfull!) to appear for a client of mine then I stand to be sued if he or she is negligent. Thus, the client has protection. Who is at risk?

    I can see the argument that a costs lawyer is a better bet because they have PI insurance but so too do many costs draftsman.

    Defendant Solicitor

    23rd May 2011

  2. I guess the issue stems from the recent articles by DJ Hill as to whether costs draftsmen have rights of audience. At a recent trip to the SCCO, the Master there told me that it would take a directive from upon high to put this into effect and until they do, DJ Hill cannot do a thing about restricting representation by those cost draftsmen that are not members of the ACl

    Graham

    23rd May 2011

  3. Question.
    What right do the ACL have to demand only their members may attend DA hearings? Their “test” is a (now) 1 day course with no concluding examination to test whether the recipient is fit or able to conduct hearings.
    Also, what right do the ACL have to place themselves above anyone whom is employed within a solicitors practice but is unqualified ? To restrict attendnace at Assessment hearings to only ACL members, would also require a law change to remove the rights confered to such clerks employed by solicitors and routinely appearing on every other type of case the length of the country
    The fact this issue is raised again, shows how it continues to feature in the minds of the ACL. I respectfully suggest they address their attention to something more worthwhile, least they alienate the very solicitor clients whom so far have instructed them

    Anonymous

    23rd May 2011

  4. This is pure nonsense. Without meaning to sound too defensive, I do detect a hint of snobbery from so called ”Costs Lawyers” on this site.

    I have to admit though, if I elect to take the jumped up excuse for an advocacy option that is being touted by the ACL, then I would probably rinse it for all it was worth as well!!!!

    Truly Eminent Costs Professional

    23rd May 2011

  5. This is a n academic argument. The ACL (800 mebers?) may wish to restrict rights of audience but do the Law Society (120,000 members?)

    Doubt it.

    Defendant Solicitor

    23rd May 2011

  6. Why the ACL bashing.

    Yes the ACL want advocacy to be a reserved occupation but that is not the subject of this thread. As to the success of such an application that has been considered previously. It is parts of the judiciary that is the issue not the ACL.

    I have my own opinions but ther are the articles by RCJ Hill and whether HHJ Holmans is relevant.

    Do the above believe RCJ Hill is completely wrong and any appeal from him would be bound to succeed? Is anybody going to argue the point before RCJ Hill , if they ever get a chance taking into account his comments as to the Leeds pilot

    Kevin Hassey

    23rd May 2011

  7. a nice change from Claimant bashing?

    annon

    23rd May 2011

  8. Actually, Kevin, yes, I have argued the point before RCJ Hill, whom was kind enough to set out his veiws to me, and listened to my arguments in response. I had no problem in being heard throughout the balance of the assessment hearing, and pleasingly won and recovered my costs, much to the chargrin of the opposing Counsel whom had been instructed by the Defendant draftsmen fronting the Insurers 🙂

    Anonymous

    24th May 2011

  9. Well there you go Mr Anonymous. That’s proof enough.

    Do you do agency hearings?

    If you can give us all a hint to contact I am sure we would all be interested to prevent any further rulings from the RCJ. Have you thought about contacting Lawtel to get it reported? It would be of great help taking into account the views on the unreported cas ruled on by DJ Hill given by the RCJ in articles.

    He appears to be in a minority and if he has made a decison contrary to his earlier views it would go a long way to finalising the position

    Kevin Hassey

    24th May 2011

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