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costs draftsmen

Year of the Law Costs Draftsman

By on Jan 2, 2013 | 11 comments

Law costs draftsmen, costs lawyers and others working in the field of legal costs are set to have a great 2013. This may sound counterintuitive given the Jackson costs reforms are being introduced this year but it is worth considering the facts. Costs budgeting is set to be introduced in April. Overall this is bad news for costs practitioners. Costs budgeting produces a small amount of frontloading of costs work (preparing budgets and seeking the courts’ approval) which is more than offset by the loss of work at the end of the claim (drafting bills, points of dispute and replies, negotiating costs and attending detailed assessment hearings). However, given the life cycle of a typical claim, 2013 is likely to produce the additional work generated by costs budgeting without practitioners experiencing the corresponding loss of work at the end of a claim. Claims subject to costs budgeting are unlikely to settle this year. Inter partes recoverability of success fees and ATE premiums is due to end in April. This is almost certainly likely to reduce the number of costs dispute. However, the change will not be retrospective and it is unlikely that the negative impact on cost work will therefore be felt this year. Again, the vast majority of claims where this is likely to be relevant will simply not have settled. The extension of the RTA portal will have a dramatic impact on work volumes. But the news that implementation will not happen in April will again mean that the impact of this change will not be felt in 2013. The really noteworthy factor to consider is the number of substantive claims that are likely to settle this year. Whereas claimants solicitors immediately see the additional work generated by new claims, those working in costs traditionally have to wait until the conclusion of a matter for it to produce any cost work. Recent years have seen an ever increasing number of new claims being brought. 2013 should see these figures translating into additional costs work. This combination of factors should see a boom in 2013 for those working in legal costs. 2014 will be...

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Association of Costs Lawyers' website

By on Jul 25, 2012 | 0 comments

The Association of Costs Lawyers new website (www.associationofcostslawyers.co.uk) is well worth a visit for those who have not yet seen it (and not simply to see a video presentation by Chairman Iain Stark – as if that weren’t enough) but also to see the sample copies of the excellent Costs Lawyer magazine. Although this is one of the great perks of ACL membership, it is surely only a question of time before this publication is made available for purchase by non-Costs...

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Costs Lawyer qualifications

By on Jul 9, 2012 | 4 comments

I note a recruitment advertisement in Costs Lawyer magazine from Practico seeking senior costs lawyers who have “Costs Lawyer or higher professional qualifications”. Anyone fancy providing a hierarchy of legal qualifications?

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Still nothing better to do?

By on Apr 23, 2012 | 8 comments

I mentioned the other day receiving an email from the other side’s costs draftsman on 30th March 2012 reading: “Please can you provide an update on the current position of our clients cost cheque in relation to this matter? Costs were agreed on 23rd March in the amount of £7,000.00 on 14 day payment terms”. I suggested the other side did not appear to have anything better to do other than sending premature chase-ups. Much heated commentary on this post followed as to whether the chase-up was a reasonable step or not, with one wag noting that “the ‘issue’ has certainly prompted a lengthier debate than entity regulation of the costs profession did”. I have a further postscript to add. On 4th April 2012 I received the following email on the same case: “Please can you urgently provide the current position on our clients costs cheque. Costs were agreed on 23rd March in the sum of £7,000.00. Please note receipt of payment is strictly 14 days from when costs were agreed, on day 15 we would be in the position to issue enforcement proceedings to recover the agreed amount.” Given there was no costs order, they presumably meant they would be in a position to issue proceedings for breach of contract on day 15. At this stage I went away to review the papers: 8th March 2012 – Defendant makes offer of £7,000 23rd March 2012 – Claimant says they “confirm costs are now agreed in the sum of £7,000. Settlement in the agreed sum is strictly subject to receipt of the payment in satisfaction within 14 days from the sate of this letter”. I will confess that I rather lost interest in contract law after week one of my law degree and therefore never really mastered much beyond offer, acceptance, rejection and counter-offer. However, my limited understanding of such matters is that if you purport to accept an offer but then seek to impose a fresh condition upon acceptance, such as: • Payment is made within a certain timescale, or • Payment is made in used £10 notes left in a paper bag under a park bench, or • Payment is hand delivered by Pippa Middleton who will...

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The real rights of audience "myth"

By on Mar 21, 2012 | 4 comments

Following on from the decision in Kynaston v Carroll [2011] EWHC 2179 there have been calls in certain circles for entity regulation of costs firms. Currently the Costs Lawyer Standards Board (CLSB) regulates only individual Costs Lawyers. There appear to be a number of arguments being put forward as to why this needs to be done. Today I will focus on one limited aspect. As I understand the argument it goes something like this: Non-qualified costs draftsmen who are employed by a firm of solicitors may attend detailed hearings as they are employees of the firm. Such individuals are regulated indirectly by the SRA as the SRA regulates the firm. The CLSB does not regulate firms. If Costs Lawyers can delegate their rights of audience to non-Costs Lawyers there is no corresponding control over the non-regulated individual. We therefore need to regulate costs firms so all those wishing to exercise the rights given to Costs Lawyers are properly regulated. This is, in my view, a misreading of the Legal Services Act 2007, which governs rights of audience. Under the Act, there are two ways (so far as relevant) in which a person can exercise rights of audience. The first is if they are an authorised person and therefore have the right themselves (eg solicitors, barristers, Costs Lawyers). The second is where they are an “exempt person” for the purposes of Schedule 3. The relevant section reads: “The person is exempt if – (a) the person is an individual whose work includes assisting in the conduct of litigation, (b) the person is assisting in the conduct of litigation – (i) under instructions given (either generally or in relation to the proceedings) by an individual to whom sub-paragraph (8) applies, and (ii) under the supervision of that individual, and (c) the proceedings are being heard in chambers in the High Court or a county court and are not reserved family proceedings.” The crucial part to understand is that you are only an “exempt person” if you are instructed and supervised by an individual who is an authorised person (eg a solicitor or Costs Lawyer). There is no right to appear by virtue of being an employee of a firm of solicitors....

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"Rights of audience myth" myth

By on Mar 20, 2012 | 3 comments

Costs Lawyer magazine has unsurprisingly been devoting quite a lot of coverage and comment to the case of Kynaston v Carroll [2011] 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...

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