The defendant costs specialists

Costs Lawyer work

By on Jan 16, 2017 | 1 comment

My annual Costs Lawyer Practising Application form needed to be completed before the end of 2016.

As usual, this contained a section asking about the source of instructions during the previous year (solicitor, non-solicitor, legal aid, non-legal aid, etc).  However, this year, for the first time, rather than ask for the percentage of cases falling into each category, it asked for the actual number of instructions from solicitors and non-solicitors.  This is no doubt as a result of the expectation of the Legal Services Board that the Costs Lawyer Standards Board better understand the nature of the work being undertaken by Costs Lawyers.

The odd thing about the application form was the way the question was worded asking for “the number of instructions you (not your firm) received from a Solicitor” and “Non-Solicitor”.

Like most costs firm, I suspect, the majority of instructions received by my firm are given to the firm rather than to any named fee earner.  It is normally a question of internal case loads/convenience as to which fee earner then deals with the matter.  Less often a new case will be marked for the attention of a particular fee earner but, again, may be allocated to another fee earner.  Only occasionally is a new instruction expressly addressed to an individual (and, even then, will sometimes need to be reallocated, with the client’s consent, depending on existing commitments).

Given the question expressly excludes instructions received by the firm, the actual number for most Costs Lawyers (sole practitioners aside), is likely to be very small and largely meaningless.

It is perfectly possible that I have simply misunderstood what was wanted and the question was actually aimed at the number of cases where work was undertaken.  However, if so, I suspect I was not alone in reading this differently.

Even if it was clear as to what was being asked, I am not sure how meaningful it is to know the number of cases where instructions are received and/or cases worked on.  At least in the past, some Costs Lawyers dealing with volume, low value personal injury work might handle 100 new cases each month.  In contrast, a Costs Lawyer who exclusively drafts bills in group litigation might deal with an average of less than one new matter each month.  Equally, the volume of cases an in-house Costs Lawyer working in a busy legal aid practice will handle will be entirely different to a Costs Lawyer working for a City firm dealing with heavy commercial litigation.  The number of “instructions” a Costs Lawyer receives may increase or decrease simply as a result of a shift in the type of work being undertaken.  The number of actual cases is meaningless without any context.

Re-reading the form again, an earlier question does suggest this question was aimed at finding out the number of cases where work was undertaken (although not sufficiently clearly to be confident):

“If you worked for a firm of Solicitors during 2016 please state: What percentage of your instructions were from your employer client, ie where you worked on costs issues as a result of litigation on which your firm was instructed.”

I am fairly sure that this question is aimed at discovering the source of work undertaken by Costs Lawyers, rather than the nature of the instructions received.  If that is so, then the use of the phrase “as a result of litigation” is clearly not meant in the proper sense of: has a matter become litigated (ie have proceedings been issued).  If a Costs Lawyer employed by a firm of solicitors worked exclusively on personal injury claims handled by that firm, it would not matter what proportion of those claims were litigated or non-litigated (noting the majority of personal injury claims settle pre-proceedings).  The expected answer would be 100% regardless.

But I am then struggling to understand what the phrase “as a result of litigation” is meant to signify.  Is this meant to expressly exclude, say, non-contentious Court of Protection work?  Instructions “from your employer client” is not necessarily remotely the same thing as instructions from your employer client “as a result of litigation”.

Although these questions are meant to assist the CLSB better understand the work undertaken by Costs Lawyers, I am not convinced the CLSB has properly understood what it was asking and has certainly not phrased the questions with sufficient clarity to be confident there will be any consistency in the answers received.

    1 Comment

  1. I think your ultimate conclusion “I am not convinced the CLSB has properly understood what it was asking” is the key to your solution.

    The solution is that, as with all areas of law, there is a layer of bureaucracy that is added for no discernible purpose other than produce ‘some figures’ for a committee over which to pore. The fact that the question is ambiguous matters not and will merely stimulate for debate for the committee to document.

    The value of any given exercise is anybody’s guess but some appear to be futile (expense of time survey, diversity questionnaire etc.) whereas others may have more value (I am struggling but cannot think of an example).

    I would guess that many are not as diligent as you are instead taking a wild stab in the dark at the survey based upon assumptions which have little to do with reality (rather like a costs budget).

    Charles Wheatcroft

    17th January 2017

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