Association of Law Costs Draftsmen shake-up

(This post was written before the council of the Association of Law Costs Draftsmen responded to the post Costs Counsel v Costs Lawyers (click link) and should be read in conjunction with that.  I haven’t felt it necessary to amend the content of this post.)

I previously mentioned, in passing, that I am now a Costs Lawyer having attended the Association of Law Costs Draftsmen’s Costs Lawyer course. At the time I didn’t rush out to order a new set of business cards. With the benefit of hindsight, I think that was probably a sensible decision. Otherwise I might now be sitting at my desk with a pile of business cards and a large bottle of Tipp-Ex.

Now, although today’s post may be of some interest to those who work in the field of legal costs (and readers who fall into that category should feel free to comment) this post is really aimed at the more important category of those who instruct costs professionals to assist them in costs disputes. The question of what does it mean to instruct a Costs Lawyer, as opposed to any other category of costs professional, is an important one as there are about to be many more of us about.

As I explained on another occasion, the term “law costs draftsman” is available to all regardless of qualifications, experience or absence of any regulation from a recognised body. There are a wide number of other descriptions that those who work in this area choose to use – such as costs consultant or costs negotiator – sometimes deliberately chosen to distinguish themselves from “traditional” law costs draftsmen.

The ALCD exists as a body to train, regulate and promote costs draftsmen. However, membership is entirely voluntary. The ALCD was recently granted authorised body status which enabled it to grant rights of audience and the right to conduct costs litigation to Costs Lawyers.

Until very recently the Association of Law Costs Draftsmen has four classes of membership:

Students are registered with the Association and are required to complete one module of the training course within the first year of membership to remain as a student member. To enrol as a student applicants are not required to be employed in costs law.

Associates have completed the full training course consisting of three separate modules, attended the compulsory seminars and passed the examination of the Association at Associate level in addition they must have completed five years qualifying employment.

Fellows are full members of the Association who have qualified as Associates, passed the examination at Fellowship level and must have completed seven years qualifying employment.

Costs Lawyers are Fellows who have completed the Costs Lawyer course of the Association.

The Costs Lawyer course consists of attending a two-day training course. The course covers ALCD accounts rules, the Civil Procedure Rules and advocacy training. There is no test or other assessment process at the end. Time doesn’t allow me to go into a detailed critique of the course and so I will simply repeat this: it’s a two-day course with no test or assessment process.

Regardless of the suitability of granting rights of audience at Circuit Judge or High Court level and the right to conduct costs litigation on the back of a two-day course, it is therefore possible to attain Costs Lawyer status simply be turning up, sitting on the back-row of the lecture hall, sleeping throughout and waking up just in time to collect your certificate.

(I suppose a similar criticism could be made of the CPD points that many professional bodies, including the ALCD, require their members to acquire. You can lead a horse to water, but you can’t make it drink. You can lead a lawyer to a training course, but you can’t make him think. On the other hand, CPD is designed simply to keep qualified lawyers up to speed rather than represent the route for qualification.)

Given this, the real entry barrier to Costs Lawyer status is/was the requirements necessary to become a Fellow.

Not long ago I attended a detailed assessment hearing and was chatting with the other costs draftsman who was an Associate who had recently sat the Fellowship examination and failed. Now, my limited experience of this costs draftsman was that he was a perfectly competent costs draftsman. I’m not remotely qualified to comment on whether he was or wasn’t up to “Fellow” standard. However, unfortunate though it no doubt was from his perspective not to have passed, I was positively reassured by his failure. As I mentioned when I passed the same exam, I found the standard suitably demanding. The fact that the ALCD had failed a perfectly competent costs draftsman showed that they were trying to maintain appropriately robust standards. They had not set the level at such a standard that they would pass anyone who took the exam regardless of ability. This is what one would expect from a professional body. Those involved in organising and marking the examination papers (particularly Murray Heining) are to be thanked and congratulated for their hard work.

So now we come to the ALCD’s recent announcement concerning various changes to the ALCD structure. The first change is based on the conclusion that there are currently too many categories of ALCD membership. I’m not sure this is a pressing problem but fair enough. In future their will be only two tiers of membership: trainee costs lawyer and costs lawyer. Fair enough.

To achieve this aim, three changes are to be put into effect:

1. All existing Associates will automatically be upgraded to the status of Fellow.

2. Fellow status will cease to exist as of 1 January 2012.

3. In the intervening period, existing Fellows are required to attend the Costs Lawyer course.

This partly needs to be put into historical perspective. Older members of the ALCD should step in now if anything I write on this aspect is inaccurate. Going back far enough, I understand costs draftsmen could become Fellows of the ALCD simply by virtue of being members and having worked exclusively in costs for long enough. One reader of the Legal Costs Blog, informs me via the comments section:

“I missed the automatic rights to graduate to Fellowship (by reference by a District Judge) … those who have more recently become Associate Members have been able to automatically graduate to Fellowship status after two years of practice for free without even having attended an assessment hearing”

Another wrote:

“the ALCD many years ago [allowed] Fellowship by interview rather than study, just to boost its numbers to fall in line with the requirement to show they were largely representative of the whole costs industry”

Over recent years the ALCD training programme has become increasingly comprehensive and thorough. The standard required to attain Associate level had become, I am sure, much more demanding compared to the past where the training requirements were far less onerous. (Was there any formal training required if one goes back far enough?)

We therefore already had a situation where many had achieved Fellow status without having to show any actual skill or knowledge of costs law or had achieved this status by a less onerous short-cut. This is not, of course, to suggest that there are not some extremely gifted costs draftsmen among them. However, that is regardless of, not because of, their formal status.

The ALCD has now decided to allow a further large group to attain, in effect, Costs Lawyer status “on the cheap”. The 2009 membership figures for the ALCD had 270 Costs Lawyers, 170 Fellows and 131 Associates. The number of Costs Lawyers will therefore have more than doubled by 2012 simply as a result of members attending a two-day course.

What has not been announced, so far as I know, is what standard will be expected from Costs Lawyers in the future. I assume, although could be wrong, that the ALCD intends to retain some form of professional examination for future members. This raises two issues:

1. Will the future standard be set at the same level as that previously expected of Associates? If so, then this will represent a permanent “dumbing down” of standards.

2. Or, will those training in the future be expected to achieve what is currently Fellow standard? If so, why now allow a large number to slip through at a lower level? It would have been perfectly simple (some extra marking aside) to require all Associate members to pass the Fellowship examination and attend the Costs Lawyer course or be downgraded to Student status. Was avoiding upsetting some Associate members prioritised over quality?

I mentioned above the Associate who had recently failed the Fellowship examination. If he was previously considered not to have met the required academic standard expected from Fellows, why is it now considered appropriate to grant him an automatic route to Costs Lawyer status and the right to exercise section 27 and 28 rights?

Writing in Costs Lawyer magazine, ALCD Chairman Iain Stark wrote that “change is inevitable in order to ensure not only regulation but also high professional standards”. How does this change assist in terms of ensuring “high professional standards”? It is a clear-cut lowering of standards.

The ALCDs professed long-term aim is to achieve protected body status. This: “would mean that only approved members of the ALCD could represent parties in costs proceedings. Effectively, this would require the unregulated part of our profession to either join the ALCD or be precluded from participating in costs proceedings”. This always seemed a rather unrealistic goal but this automatic upgrading of Associates to Fellows (and thereby Costs Lawyers) must represent the final nail in the coffin for that dream. A professional body that is busily and consciously lowering its standards cannot possibly expect to achieve “closed-shop” status for its members.

The ALCD is focusing its efforts on meeting the regulation requirements of the Legal Services Act. Regulation is, or should be, focused on the all important needs of clients. As a marketing pitch, for the ALCD to be able to assert that its members may not necessarily be well qualified but, by golly, they are well regulated, may be thought to leave something to be desired.

Iain Stark wrote: “It is inevitable that these major changes will attract criticism from some members”. Judging by a number of the comments already posted on the Legal Costs Blog and private communications I have had with other members, that prediction has proved accurate.

I don’t think I’ll be rushing to frame my Costs Lawyer certificate.