We previously considered, in some detail, the article that appeared in the Law Society Gazette and Costs Lawyer magazine from District Judge (and Regional Costs Judge) Hill on the rights of audience of non-solicitor agents. The conclusion of the article was that a non-solicitor agent had no right to appear when the court is sitting in chambers. This would apply equally to law costs draftsmen who are not employed directly by a firm of solicitors and who are not qualified Costs Lawyers.
A recent article in Solicitors Journal (7 December 2010) from District Judge Mildred was of the view that the matter was not so clear:
“if a solicitor is exercising a degree of supervision over the work of the agent (and their instructions are often highly circumvented) then a solicitor’s agent may in those circumstances be exempt”
(District Judge Hill sits at Scarborough and Leeds County Courts. District Judge Mildred sits at Bournemouth County Court. Is this the famous “North-South Divide”?)
Having raised this matter informally with a number of Masters and Costs Officers in the Senior Courts Costs Office (one of those soft southern courts), it is clear that they are not persuaded by DJ Hill’s analysis. Perhaps more interesting, the last time I mentioned the costs judge was not even aware of challenges being made in the SCCO to independent, non-costs lawyer, draftsmen appearing. It was as far back as the Association of Law Costs Draftsmen’s National Conference in March 2010 that the ALCD chairman was encouraging ALCD members to challenge the rights of audience of non-members.
Where are the challenges? Are they meeting with success elsewhere?
Like many of the posts that appear here, some get written some time in advance and then get parked. Having written the above post, what should there be in this month’s Costs Lawyer magazine but a further detailed argument from District Judge Hill explaining exactly why he thinks independent law costs draftsmen do indeed have no right to appear on detailed assessment? This is likely to spur some challenges to non-Costs Lawyers. I plan to write a detailed article as to why I, still, think this view is wrong. However, this coincides with the Association of Costs Lawyers’ announcement that it plans a major recruitment drive. If it has managed, contrary to what everyone previously thought, to gain a monopoly over advocacy work for draftsmen not working in-house, its job may have just become somewhat easier.
There’s never a dull moment in costs.
On a related issue, I previously questioned the basis for the ACL’s view that Costs Lawyers cannot delegate their rights of audience to non-Costs Lawyers. I’m still waiting for something solid in support of that proposition. Section 13(1) of the Legal Services Act 2007 states that the question of whether a person is entitled to carry on an activity which is a reserved legal activity is to be determined solely in accordance with the provisions of the act. Why would a non-Costs Lawyer appearing in court under the instructions and “supervision” of a Costs Lawyer not be an “Exempt Person” under paragraph 1(7) of Schedule 3?
4 thoughts on “Challenges to non-Costs Lawyers?”
I only read quickly the latest from DJ Hill. It struck me that he had no further light to shed on the issue beyond his previous article. If I read it correctly he was suggesting that the notion of temporary fictional employment was past its sell-by date, but could not comfortably distinguish the authority most commonly relied upon – Waterson Hicks v Eliopoulis – a CA case with clear principles outlined by Evans LJ.
Question
A cost lawyer heads a company, or an in-house department.
they go on record
all the work is done by a non-cost lawyer in the same firm/department.
are they entitled to do so, and why?
Re the second part of Simon’s post, and to save readers from having to look up the Act, the relevant provisions are:
18. Authorised persons
1)For the purposes of this Act “authorised person”, in relation to an activity (“the relevant activity”) which is a reserved legal activity, means —
(a)a person who is authorised to carry on the relevant activity by a relevant approved regulator in relation to the relevant activity (other than by virtue of a licence under Part 5), or
(b)a licensable body which, by virtue of such a licence, is authorised to carry on the relevant activity by a licensing authority in relation to the reserved legal activity.
19 Exempt persons
In this Act, “exempt person”, in relation to an activity (“the relevant activity”) which is a reserved legal activity, means a person who, for the purposes of carrying on the relevant activity, is an exempt person by virtue of—
(a)Schedule 3 (exempt persons), or
(b)paragraph 13 or 18 of Schedule 5 (additional categories of exempt persons during transitional period).
Schedule 3 Para 1(7) reads as follows:
(7)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.
8) This sub-paragraph applies to—
(a)any authorised person in relation to an activity which constitutes the conduct of litigation;
(b)any person who by virtue of section 193 is not required to be entitled to carry on such an activity.
Ergo, Simon must be right and the answer to Anonymous has to be ‘Yes’. I would be interested to read any counter-arguments!
I had this argument raised only last week by a Defendant before a Regional Costs Judge here in the north as i am not a member/costs lawyer. The RCJ was not impressed with the argument and swiftly brushed the issue aside.