Costs Counsel v Costs Lawyer – ALCD Responds
The following comes from the Association of Law Costs Draftmen‘s council:
This is the collective response of the council of the ALCD to the posts made in response to the article Costs Counsel v Costs Lawyer [click link]. In view of the nature of the comments made, the Chairman intends also to make a number of comments in the forthcoming issue of Costs Lawyer.
The first point to make is that it is difficult to engage in discussions with people who are not willing to provide their names. It is not known, for example, whether the correspondents are members of the ALCD or not. Debate of this nature is best held in the forum of a general meeting of the ALCD or in signed correspondence. If the writers wish their comments to be given serious consideration, they are invited to amend their posts so as to state who they are.
The complaints which are made are: (1) that the rank of Costs Lawyer has been rendered insubstantial by virtue of the fact that it is too easy to obtain; (2) that the automatic conversion of Associates to Fellows diminishes the value of the latter; (3) that the ALCD is inappropriately proposing that Costs Lawyers should replace counsel; and (4) that Costs Lawyer is a rank which will instil a false sense of security in those who possess it, thereby causing Costs Lawyers to ignore the limits of their competence. The ALCD has considered and rejected all of these points. Some of the points are based on a mistake of facts (see below), and others fail to recognise that the ALCD is now an entirely different organisation to that which has existed previously.
The ALCD is leaving behind its status as a trade association and is becoming (or, more accurately, is creating) a regulatory body. The rights which it will regulate include rights of audience and rights to provide legal services, and may in due course include the right to practise reserved legal activities. This means that the relevant test has to be one of competence, not excellence. The ALCD would be failing in its duty to entrants and the public if it were to set the bar so high that only a select few could clear it.
The purpose of the regulatory body will be to regulate a single, unified rank of practitioner. This is the way that the vast majority of regulatory bodies work, and it is the only sensible way in which to regulate a profession which may be as small as only 1,000 practitioners. Whilst there is some truth in the notion of Associates and Fellows recently having been ‘upgraded’, this is happening not because of some extraordinary and spontaneous improvement in those persons’ knowledge and expertise, but is merely as the necessary consequence of the amalgamation of ranks.
A suitable standard of competence ought already to have been achieved by those who have attained the rank of Associate or Fellow of the ALCD; those who have attained that rank in recent years will have completed a demanding course approved by the DCA/Ministry of Justice leading to professional qualifications, and will have proven themselves to be competent by way of examination. The Costs Lawyer course is not and was never intended to be a process of by which supremely competent advocates are created; instead, it is merely a process by which persons who are already broadly competent can receive additional guidance about certain specific activities. It is merely one (small) part of the overall scheme of training, which includes CPD and the modular course. Indeed, students undertaking the new modular course will not need to sit the Costs Lawyer course at all because all relevant topics will already have been covered in depth in that new course.
Education does not end upon a qualification being attained. The ALCD is always eager to improve its training and if candidates have specific and constructive comments to make, the ALCD will take them into account.
At no stage has the ALCD ever suggested that Costs Lawyers should supplant counsel. The Chairman’s comments in the May Edition of Costs Lawyer magazine were intended to nurture a sense of drive and ambition, not to denigrate counsel. The ALCD endorses and encourages the notion that legal services should be provided by persons who are best suited to carry out the task, and from time-to-time this may well be someone other than a Costs Lawyer. Equally, the ALCD believes that the public will be best served by a profession that is able to deal with the vast majority of costs disputes without the assistance of counsel.
Once the ALCD has properly got its house in order regarding regulation, it will be able to turn its attention to other matters, such as promoting and recognising excellence. In this regard ALCD Training Limited is looking to form formal links with a university. In due course it is entirely possible that qualifications will be provided which will be a mark of excellence, but it will take some years before the profession reaches that stage. At the moment the ALCD is focussing on ensuring that there is a proper system of regulation, and that those who are able to call themselves Costs Lawyers are competent, trustworthy, insured and accountable.
Many thanks to the council for taking the time to share their views on this important subject.
The only point I’ll take issue with today is the idea that: “Debate of this nature is best held in the forum of a general meeting of the ALCD or in signed correspondence”, if this is intended to mean private signed correspondence with the council. In so far as the ALCD is moving from being a trade body to a regulatory body, significant changes to its structure are of wider public importance than simply being a matter of interest to its current members. Secondly, while the ALCD continues to aim for protected body status, such as to enable it to exclude non-members from costs proceedings, this is a debate to which all those who work in the field of legal costs and, more importantly, those who instruct costs professionals should be able to engage in.
I am inclined to share the view that less in the way of “anonymous” comments on the Blog would be a good thing. I regularly stick my head above the parapet when writing the Legal Costs Blog. To date, my office hasn’t been stormed by a pitchfork and flaming torch wielding mob. A public and open debate is always to be welcomed.
Sorry, I’ve got to sign-off now. There’s a loud banging coming from my front door.