Costs Lawyer qualification – history repeats itself
The Costs Lawyer Standards Board has just finished a consultation process on a proposal to allow a new route to qualification as a Costs Lawyer. The CLSB is proposing to introduce a new test which would lead to Costs Lawyer status. The test would be open to anyone who can evidence that they have achieved 10 years of experience in costs law and practice. There would be no requirement for candidates to undertake learning/study as part of the preparation for the new test.
The new test would cover the current Costs Lawyer training syllabus. It is proposed that the test would be via multiple-choice questions (“MCQs”).
The current three-year training course would continue to operate as the entry route for those without 10 years’ experience.
The thinking behind this proposal is entirely sensible. I became a Fellow of the old Association of Law Costs Draftsmen (as it then was) via a one-off examination, rather than through the then existing training course. I was one of the last to take this route as a decision had been taken to remove that option to qualification. I believed that decision was wrong then and the proposal to reintroduce a fast-track route to qualification – so long as sufficiently robust – should be uncontroversial (although no doubt very frustrating for those experienced costs draftsmen who committed to the time and cost of the full training course in recent years in the absence of a fast-track route).
Nevertheless, there are some obvious issues that arise:
- Is a multiple-choice test appropriately robust? When I did the Bar Vocational Course, a number of subjects (such as Civil Procedure) were tested by way of MCQs. These required significant study (or at least a photographic memory) to have any realistic chance of passing. Guesswork was of only limited assistance. For this new test, I can envisage questions such as:
What is the deadline for service of Replies to Points of Dispute?
A within 21 days after being served with the Points of Dispute
B within 21 days of receipt of the Points of Dispute
C no deadline as Replies are optional
D at least 14 days before the date listed for detailed assessment
E at least 21 days before the date listed for detailed assessment
Nevertheless, one would have to recognise that the laws of probability must allow for the occasional possibility of a pass being achieved through nothing but chance, however unlikely.
- Although well designed MCQs should be able to test knowledge of costs law and practice, it does nothing to test the ability to construct an argument or articulate this in writing. A Costs Lawyer’s work can encompass drafting narratives to bills to summarise complex litigation, the (brief) formulation of costs arguments in Points of Dispute and Replies, drafting written advices for clients on complex issues of costs law and drafting Skeleton Arguments. Over the years, I have lost count of the number of apparently well qualified job candidates who have completed law degrees, CPE, BVC/BPTC, LPC, etc but who turn out to be semi-literate and/or innumerate. This is a scandal for other academic institutions but it is not obvious that it needs to be exacerbated by the CLSB conferring Costs Lawyer status on those lacking basic skills in English and arithmetic, let alone lacking the high standards that should be expected. In the absence of an essay based examination (or equivalent), there is no way to judge whether such high standards in English and reasoning are met. Naturally, I leave it to others to decide whether a costs draftsman would survive 10 years in practice without reasonable literacy or numeracy skills.
- Costs Lawyers have rights of audience on costs matters up to, and including, the High Court. How is advocacy competency to be judged by MCQs? I would be tempted to suggest the complete failure in the consultation to even mention advocacy suggests the CLSB does not properly understand the role of Costs Lawyers but for the fact that this appears to be almost exactly the same approach the ALCD (as it was) took to advocacy. When the decision was made to “automatically” upgrade all Associates and Fellows of the ALCD to Costs Lawyer, all that was required was attendance at a two-day (subsequently shortened to one-day) course with no advocacy exercises or assessment. It was plainly wrong then and the CLSB is wrong now if it considers competency in advocacy to be an issue of no relevance when conferring Costs Lawyer status.