The defendant costs specialists

What can law costs draftsmen do?

By on May 31, 2017 | 1 comment

What steps in costs litigation are (non-Costs Lawyer) law costs draftsmen able to undertake?

Although the issue, inexplicably, still sometimes arises, it should now be clear (post-Kynaston v Carroll [2011] EWHC 2179) that they can appear at (first-instance) detailed assessment hearings so long as they are properly instructed by the legal representative on record.

However, the role of independent (ie not in-house) costs draftsmen extends beyond advocacy at detailed assessment.  It is not uncommon for costs draftsmen/costs firms to:

  1. Serve Notices of Commencement.
  2. Make Part 36 offers in detailed assessment proceedings.

Is this permissible?

Both Notices of Commencement and Part 36 offers are subject to the formalities that go with service (CPR 6).  If a costs draftsman is not on record as acting for a party (and, further, not an authorised litigator), can they properly serve a Notice of Commencement or Part 36 offer?

The answer is possibly now to be found in the recent decision of Coulson J in Ndole Assets Ltd v Designer M&E Services UK Ltd [2017] EWHC 1148 (TCC).

In brief terms, the issue arose as to whether a non-regulated claims firm could properly serve a Claim Form and Particulars of Claim on behalf of a litigant in person.  It was not in issue that the claim firm was not permitted to carry out reserved activities.

The judgment analyses whether service of Claim Form and Particulars of Claim amounted to “prosecution” of the proceedings (a reserved activity).  If I have understood the judgment correctly, it concludes that such service was a reserved legal activity but this was a task that could legitimately be delegated to a third party, it being noted that service by process-servers happens all the time:

“In my view, the (partial) answer to this is that process-servers are engaged by the relevant solicitors to carry out this particular task. They have the solicitors’ delegated authority to serve the documents. In those circumstances, since the solicitors on the record are responsible for the carrying out of all reserved legal activities, the solicitors remain responsible for the service of the documents, even if they have sub-contracted the task to professional process-servers. In that way, there is nothing inconsistent in concluding that the service of proceedings by process-servers is a reserved legal activity, for which the solicitors on the record are and remain responsible.”

To the extent to which a solicitor could delegate such a task, so could a litigant in person.

If this reasoning is correct, it would equally mean solicitors could delegate the service of a Notice of Commencement or the making of a Part 36 offer to external law costs draftsmen.  The extent to which such work needs to be properly supervised and undertaken under express instructions is less straightforward.

    1 Comment

  1. Coulson J’s reasoning seems so obviously flawed that I think I must have missed something.

    The argument appears to be that (1) solicitors can lawfully subcontract reserved activities to non-qualified persons; and (2) LiPs ought to be in no worse position than solicitors in this regard; therefore (3) LiPs can lawfully engage non-qualified persons to carry out reserved activities on their behalf. This drives a coach and horses through the legislation.

    What have I missed?

    Jon Heath

    8th June 2017

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