20 March, 2012
Filed Undercosts draftsmen
Costs Lawyer magazine has unsurprisingly been devoting quite a lot of coverage and comment to the case of Kynaston v Carroll  EWHC 2179 (click to read judgment). This concerned the thorny issue of rights of audience at detailed assessment hearings.
The facts of the case, so far as relevant, are that an employee of a costs firms (who was not himself a Costs Lawyer or otherwise had his own rights of audience) was “working under the supervision” of a Costs Lawyer (who therefore did possess rights of audience) and attended a detailed assessment hearing heard in the Senior Courts Costs Office. The question that arose was whether the employee had the right to appear before the court.
Master O’Hare said “yes”. The other side sought leave to appeal, which was refused on paper as being “wholly without merit”. On the further oral application for permission to appeal Mr Justice Burnett again refused permission on the basis that “the arguments have no merit at all”.
In simple terms it was accepted that the employee of the costs firm fell within schedule 3 of the Legal Services Act 2007 and was therefore entitled to appear before the Court.
In the alternative, Master O’Hare had indicated that even if no such automatic right existed, he nevertheless had the power to grant such a right on a discretionary basis and would have done so. Mr Justice Bennett recognised such a power and made no suggestion it would be inappropriate to exercise it in detailed assessment hearings.
So we now know several things:
1. I was correct all along (smug mode) in my interpretation of the relevant act – see previous post on rights of audience.
2. Detailed assessment hearings are heard “in chambers”.
3. The term “in chambers” is not to be treated as meaning “in private”.
4. Costs Lawyers can, where there is proper supervision, delegate rights of audience (in detailed assessment hearings) to a non-Costs Lawyer costs draftsman.
5. There is no reason independent law costs draftsmen (ie non-Costs Lawyers who are not working in-house for a firm of solicitors) cannot appear in detailed assessment hearings where they have been properly instructed by a solicitor.
This decision has produced calls in some circles for entity regulation of costs firms (the firm in Kynaston not being regulated as the Costs Lawyer Standards Board only regulates individuals). I’ll discuss that issue tomorrow.