Challenges to non-Costs Lawyers?
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?