The defendant costs specialists

Detailed assessment and rights of audience

By on Mar 22, 2012 | 19 comments

One of the controversial forthcoming changes to the CPR concerning detailed assessment proceedings is to scrap the current CPR 47.18 and 47.19, concerning liability for detailed assessment costs, and substitute these with:

“47.18
(1) The general rules about costs contained in Parts 36, 43 and 44 apply to the costs of detailed assessment proceedings, as if “claimant” means receiving party and “defendant” means paying party.

(2) The court will summarily assess the costs of detailed assessment proceedings at the conclusion of those proceedings, unless otherwise ordered.

47.19
Unless the court otherwise orders, interest on the costs of detailed assessment proceedings shall run from the date of the default, interim or final costs certificate, as the case may be.”

Now, I, along with other members of the Association of Costs Lawyers, must have missed the consultation document that went out when these changes were first proposed. If I had seen it (and surely they didn’t just press ahead without bothering to consult those people who will have to work with this) there would have been a long list of problems pointed out.

However, putting to one side some of the theoretical problems, there is one rather glaring practical difficulty.

The Statement of Rights, which governs the rights of a Costs Lawyer holding a current practising certificate, says it covers:

“Rights of audience in all proceedings being conducted under Parts 43-48 of the Civil Procedure Rules 1999 (“CPR”) and under Part 52 of those rules with regard to appeals from detailed assessment hearings before a High Court Judge or a Circuit Judge such rights to exclude an issue of entitlement to costs under CPR 44.3 and entitlement to a wasted costs order arising solely under CPR 44.14(1)(b) or CPR 48.7 other than in connection with proceedings commence [sic] under (vi) and (vii) below.”

So, it expressly excludes rights of audience as to “an issue of entitlement to costs under CPR 44.3”. (We’ll ignore for the moment that there is no obvious good reason for such a general exclusion.)

The new rule change means that Part 44.3 will apply to liability for costs of detailed assessment proceedings but a Costs Lawyer, who otherwise has rights of audience in such proceedings, will not have rights of audience in relation to this specific issue. So, exercising my Costs Lawyer rights, I will be able to appear in a detailed assessment hearing but at the conclusion of the same will be unable to address the Court as to which party should have to pay the costs of the hearing. (Thank God for Kynaston v Carroll [2011] EWHC 2179).

You couldn’t make it up.

No doubt the Costs Lawyer Standards Board and the Civil Procedure Rules Committee will wish to liaise before April 2013.

In fact, looking carefully at the wording of the Statement of Rights I am somewhat struggling to see how a Costs Lawyer currently has any automatic right to address a High Court Judge or Circuit Judge as to the costs of an appeal they are appearing in. Surely this normally falls under CPR 44.3. The court obviously has discretion and it would be bizarre in the extreme if a judge refused permission to the very same advocate who had previously been addressing the court as to the substantive appeal, but surely this issue should be covered by the Statement of Rights.

Surely the answer to this is to remove the words “such rights to exclude an issue of entitlement to costs under CPR 44.3”. If Costs Lawyers are deemed competent to appear on costs appeals then it is difficult to see why they are not competent to deal with CPR 44.3 issues.

    19 Comments

  1. Morning Simon.

    The perceived problem exists under the Rules as they stand as CPR 44.3 is engaged when a Court is considering making any costs order at any stage of any litigation.

    But I do not think that the perception is correct on a reading of the entire Statement of Rights:

    “Rights of audience in all proceedings being conducted under Parts 43-48 of the Civil Procedure Rules 1999 (“CPR”) and under Part 52 of those rules with regard to appeals from detailed assessment hearings before a High Court Judge or a Circuit Judge such rights to exclude an issue of entitlement to costs under CPR 44.3 and entitlement to a wasted costs order arising solely under CPR 44.14(1)(b) or CPR 48.7 other than in connection with proceedings commence under (vi) and (vii) below.”

    Reading the above in conjunction with Paragraph (vi) extinguishes concern:

    “The right to litigate in all the proceedings under Parts 43-48  of the CPR and under Part 52 of those rules with regard to appeals from detailed assessment hearings to be listed before a High Court Judge or a Circuit Judge.”

    Accordingly, a costs lawyer retains the right to deal, for want of a better expression, with matters arising under CPR 44.3 (and wasted costs applications) where those matters are connected with the detailed assessment proceedings, or appeal from detailed assessment proceedings.

    My reading of the exclusion/prohibition leads me to think that the exclusion is intended to cover situations such as appearing upon an application to determine the costs consequences arising out of litigation other than detailed assessment proceedings, or an appeal arising therefrom, such as an application for determination of costs consequences of late acceptance of a CPR 36 offer in a personal injury claim. Similarly, the exclusion prevents a costs lawyer being wheeled in to deal with an application for a wasted costs order arising out of anything other than detailed assessment proceedings.

    Jon Williams

    22nd March 2012

  2. PS your time server is keen – I posted at 09:31 and the clocks don’t go forward until Sunday morning! 😛

    Jon Williams

    22nd March 2012

  3. The problem is that the wording distinguishes between right to litigate and rights of audience. The same distinction appears in the Legal Services Act. If that is correct, a Costs Lawyer would have the right to make an application concerning the costs of detailed assessment (as part of the right to litigate) but no rights of audience on the same issue. It was clearly a badly drafted document but it says what it says.

    Simon Gibbs

    22nd March 2012

  4. I agree entirely that the Statement is poorly worded! But at its highest, I can only see your perceived problem arising in circumstances where a costs lawyer seeks to exercise a right of audience, to deal with issues concerning CPR 44.3, where he/she is not also exercising his/her right to litigate. That might mean, for example, that I would not have a right of audience to appear, pursuant to your instructions, to deal with CPR 44.3 issues in a case where you are a party’s costs lawyer on record and thus exercising your right to litigate (though provided that I am ‘supervised’ by you etc., Kynaston saves the day, as it were, and I would be an exempt person in the above example).

    Summarising my view, a costs lawyer has a right to litigate without fetter under CPR 43-48 (Para. (vi)) and also has an unfettered right of audience to appear to deal with inter alia CPR 44.3 issues arising out of / connected to the costs lawyer’s exercise of the right to litigate (Para (i)).

    Jon Williams

    22nd March 2012

  5. I still don’t see the wording as being open to that reading. If it did, then section (vi) “the right to litigate” would be sufficient to cover the corresponding rights of audience and there would be no need for section (i).

    However, the fact that they are dealt with separately (in the same way as the Legal Services Act deals with them separately) suggests they are not the same. Each section grants different rights (one dealing with rights to litigate one dealing with rights of audience). I therefore do not see how one can argue a right of audience under CPR 44.3 arises via a general right to litigate under CPR 44.3.

    Simon Gibbs

    22nd March 2012

  6. badly drafted or not, how many people are actually experiencing issues on this?

    annon

    22nd March 2012

  7. Of course they are not the same and the “need” for Paragraph (i) is to clarify, or limit, the right of audience, in the stated respects, so as to cement just that i.e. that the right of audience is not the same, as to scope, as the right to litigate. But your original post and subsequent replies pay no specific regard to the crucial, in my view, part of Para (i), namely:

    “other than in connection with proceedings commence (sic) under (vi) and (vii) below.”

    The absence of punctuation in Paragraph (i), which if present might render the “other than” relaxation of the exclusion applicable only to the CPR 44.14(1)(b) and/or 47.8 exclusions, to my mind closes the door to the perceived problem.

    Putting Paragraphs (i) and (vi) together, ignoring for present purposes appeals and wasted costs, and in my own words, is it not the case that a costs lawyer has a right to litigate generally under CPR 43-48, has a right of audience to deal with CPR 44.3 issues ‘in connection with” that right to litigate but does not have a right of audience to deal with CPR 44.3 issues that are not connected with that right to litigate?

    I think it is.

    Jon Williams

    22nd March 2012

  8. Genius.

    Mind you I’m not surprised either. A few years ago I was faced with Counsel instructed by a very large London firm who tried to argue that as soon as a judge gave directions that varied from the usual 21 days for PODs etc etc in a costs only matter, that made the judge incompetent to hear the assessment.

    Counsel (not naming him / her but over 10 years call!) didn’t seem to have any difficulty with the concept that by making non-standard / case appropriate directions in a test case, Master Hurst would render himself incapable of dealing with it any further.

    I have a simple and no doubt naive approach to rules drafted by people “appointed” to jobs, that the rule has only a 25% chance of avoiding the Law of Unintended Consequences.

    I may have to revise that percentage.

    Irrespective of the “winner” in Simon and Jon’s conversation above it is clear that the rule is open to a variety of interpretations and at some point someone will waste an awful lot of money arguing about it.

    Paul Williams

    22nd March 2012

  9. its so nice all you Cost Lawyers elect to ignore a bona fide query, which clearly undermines the fabric of all these “entitlements” you go on about as Costs Lawyers

    perhaps one of you will now deem fit to answer my previous postings?

    I will repeat my question from yesterday, in the hope that someone from the ACL will take notice and reply, because this is a very real situation, and I have seen it several times now with growing regularity involving one particular Insurer and their draftsmen.

    Can a firm of draftsmen, which does not contain any Costs Lawyers at all, “act” in Detailed Assessment proceedings directly for an Insurance Company, with there being no solicitors on record either, under the provisions that the Insurer is a party which has “a financial interest in the Assessment”, and additionally sign and serve documents on the Insurers behalf on the same basis?

    Further, if (as I say) they cannot, what regulatory provisions exist to enable action to be taken? And whom would take that action?

    Anonymous

    22nd March 2012

  10. “badly drafted or not, how many people are actually experiencing issues on this?”

    At the moment, outside of costs appeals, there is currently no issue. Costs of assessment are dealt with applying CPR 47.18 and 47.19. No doubt that a costs lawyer has rights of audience in connection with that. However, the proposal is to scrap the current 47.18 and 47.19. That is when the problem, if there is a problem, arises.

    Simon Gibbs

    22nd March 2012

  11. I am minded to agree with Jon Williams

    The phrase ‘common sense’ springs to mind, or a lack of it at least

    Anonymous

    22nd March 2012

  12. Jon,

    I do see your potential reading of the rules but this somewhat begs the question as to what is meant by “proceedings commence [sic]”. Is it used in the sense of costs only proceedings (Part 44.12A) only? Or is it used in the sense of CPR 47.6(1) (“Detailed assessment proceedings are commenced by the receiving party serving on the paying party”). If the latter then the problem does seems to disappear.

    However, the reference to the proceedings being commenced under paragraph (vi) surely suggests that it is proceedings that have been commenced by virtue of the powers granted under paragraph (vi) to Costs Lawyers. If the proceedings have been commenced (whatever that means) by a solicitor then they have not been commenced under paragraph (vi) and you are back with the original problem.

    I do recognise that this is a theoretical problem rather than one that is ever likely to cause practical difficulties. That is because, as recognised in Kynaston, the court retains an inherent discretion to grant rights of audience. It would be bizarre in the extreme for a costs judge to refuse to hear a costs lawyer in this situation due to a combination of a potentially badly worded Statement of Rights and a CPR change that had failed to recognise the problem it was creating. On the other hand, there are those, such as DJ Hill, who have expressed the view there can now be no scope for ignoring the strict wording of the relevant rules when dealing with rights of audience. You are either in or out.

    Simon Gibbs

    22nd March 2012

  13. With regard to your first substantive paragraph above, I think it applies to both costs-only proceedings and detailed assessment proceedings. Absent a glossary to the Statement (heaven forbid!) then one should afford the word ‘proceedings’ it’s ordinary meaning and a procedural code / statutory instrument cannot be a reliable yardstick by which to measure the provisions of the Statement.

    Perhaps the word “commence” (sic) ought to be excised though as a literal interpretation could result in the perverse situation where a costs lawyer has a right to litigate where he/she commences the costs-only / detailed assessment proceedings but not have a right to litigate where he/she accepts service of, or files a notice of change within, proceedings! Given how perverse that situation would be however, I cannot foresee it ever getting to that.

    Jon Williams

    22nd March 2012

  14. Dear Anonymous at 12:48,

    I know not who you are nor why I should feel compelled to answer your question, particularly when you choose to start your post with an unveiled dig at costs lawyers and the ACL. At all events, I elected to ignore nothing as I do not read every blog post looking for questions from anonymous posters.

    If you want the opinion of the ACL, ask the ACL for it! I fail to understand why you think that the ACL would be aware of, much less want to address, the concerns of a non-member of the ACL via a forum/blog without affiliation to the ACL. And in the avoidance of doubt, neither Simon nor myself are ACL Council members at present.

    All that said, it would appear, at first blush, that the actions of the firm of costs draftsmen you set out do not accord with the Legal Services Act 2007. Actions contrary to the said Act by persons not regulated by the ACL (which, in the avoidance of doubt, does not regulate even costs lawyers – the CLSB does that now), have nothing to do with the ACL; take it up with the Judge within any given piece of costs litigation or address your concerns to LeO who at least might point you in the right direction. I accept that there is arguably a wider interest which the ACL may wish to lobby the powers that be over (i.e. unregulated persons undertaking (some) restricted activities which might otherwise be done by, and to the benefit of, ACL members), but that wider interest might also be said to extend to The Law Society, The Bar Council and ILEX (if not others).

    Jon Williams

    22nd March 2012

  15. doesnt that come down to ahmed and powell all them years ago

    god bless, i loved that decision

    annon

    22nd March 2012

  16. sorry, presume the law has been overtaken since then and I have not really followed this in too much detail given that I am in house – hence my earlier post saying how many people are affected. Just thought i had better clarify

    annon

    22nd March 2012

  17. dear jon

    thank you for the terse response. This is in fact the third time I have posted the same question in the last 3 threads, so it is nice someone has replied

    i posted here, because (1) the ACL did not respond to my direct correspondence to them, and (2)the issues here were of relevance to the blog discussion, and I felt the costs luminaries which frequent the pages may be able to lend their thoughts on the subject

    I concur that ILEX, the Bar Council and the Law Society may show concern, however, as the issue was specific to costs proceedings, the ACL, or as you say the CLSB, were the more relevant intervenor in my view.

    The matter did come before a Deputy DJ, who did not see anything wrong with the position procedurally and allowed their representations. Thus, if the ACL, the CLSB, or any other Costs Lawyer whom protests here about reserved rights for them undertaking conduct of DA proceedings and advocacy ignores the matter, whom am I to concern myself further

    thank you again for your considered opinion

    Anonymous

    22nd March 2012

  18. Simon: The link in your original post to the CLSB statement of rights does not work

    Jon: Who, or what, is LeO?

    Timothy P

    20th April 2012

  19. The link now works.

    Timothy P

    25th April 2012

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