Costs Lawyer advocacy standards

By on Feb 1, 2011 | 7 comments

In response to my tweet (for those of you who use Twitter you can follow us on @GWS_LAW) giving a link to my post on Costs Lawyer training standards, Neil Rose (editor of Costs Lawyer magazine, Litigation Funding and Legal Futures) responded:

@GWS_LAW But non-ACL costs draftsmen can appear before courts without any oversight/training – surely need to address that first?”

I did promise to try to pull together by thoughts on this issue, so here goes.

This post is concerned simply with the issue of rights of audience. Secondly, I am prepared to recognise there may be quite different considerations when dealing with the issue of members of the public instructing law costs draftsmen/costs lawyers directly. I am dealing with the, what I assume to be far more common, situation of costs lawyers being instructed by other lawyers.

Today I will deal with the limited issue of the “higher” rights of audience that Costs Lawyers have. To make this absolutely clear, if I have failed to do this before, these higher rights are limited to appeals before Circuit Judges and High Court judges, not higher. Nevertheless, this is a specific “right” granted by the Association of Costs Lawyers and not something that other costs draftsmen have.

I will proceed on the assumption that the reason why the ability to appear at this level is usually restricted is a desire to ensure an appropriate level of skill/experience from advocates. Although the courts may have been far more tolerant of advocacy standards before district judges sitting in chambers, this has been viewed as one level up.

Does the Costs Lawyer course ensure that those obtaining this right have such skill/experience? No and I have yet to hear anyone seriously suggest the contrary. I am not familiar with the details of the ACL’s current full training programme, so far as it relates to advocacy, and therefore cannot comment on whether this is robust enough, but the vast majority of those who have been granted Costs Lawyer status will have done so on the back of the Costs Lawyer course.

It is quite possible that I have blown this particular issue out of all proportion. The number of Costs Lawyers who actually try to use these rights is probably extremely small, although that doesn’t seem quite the point. A professional body should surely only grant rights to those who can show they are sufficiently competent. Not grant to all and then hope members have the sense to exercise this judiciously.

It has always been open to judges at this level, or above, to give “leave” to costs draftsmen to appear before them on a case-by-case basis. However, that is a matter for the judge in question rather than being a “power” transferred to a professional body.

The fact that the Ministry of Justice believed that all existing members of the ALCD, as it was, could be granted these rights without any further training (what were they told?) does not really seem to answer the criticism.

It looks increasingly likely, especially once ABSs come into force, advocacy regulation will receive a major shake-up, possibly with the Bar Standards Board taking over the role as sole regulator of all advocates.

Costs Lawyer status has got off to a bad start as a result of the current system which grants this right far too lightly. 

    7 Comments

  1. Simon,

    At the risk of repeating myself, what is the difference between the Law Society, and individual solicitors, being granted rights, and Costs Lawyers being granted (albeit lesser) rights? You have my previous responses but you choose to ignore them and repeat the previous tirade. I am guessing it’s a slow news day in the world of costs.

    As for “what were they told”, you are treading a very fine line and any credibility you may or may not have falls by the way side when you make unsubstantiated insinuations and in effect take a cheap shot at not only your own association but also at those of us who were on the Council and worked so hard to establish our rights.

    In life you either move forward or you get left behind, standing still is not an option and many years ago, before many of us saw the benefit, a few enlightened souls took the then ALCD along this path, at considerable personal time and cost, and did so for the greater benefit of all members.

    First rule of advocacy, as we seem to be hung on that subject? Preparation and that means availing yourself of all, and I mean all the facts. First rule of cross examination is never ask a question to which you do not know the answer, and that comes from availing yourself of the facts!

    Glenn Newberry

    1st February 2011

  2. Glenn,

    My understanding (and I’m always happy to be corrected)is that a solicitor may not appear in the High Court without having jumped through the various hoops to gain higher rights of audience (and I hold no view as to the adequacy of such hoops). Costs Lawyers may appear, as of right, in the High Court on a costs appeal with the only hoop, for the majority, having been attendance on a one or two day course. That is where I say the difference lies.

    I don’t doubt the very hard work that members of the ALCD/ACL have put into the process to achieve the rights it now has. If I criticise certain aspects of the current position, that should not be equated with a criticism of the efforts of those involved.

    The question going forward is whether sufficiently robust standards have been put in place for Costs Lawyers such that this signifies a mark of quality and, if not, what can be done about this.

    Unless and until there is a recognition that there might be a problem then no progress will be made. Or rather, it will have to wait until it is forced upon the ACL by the regulatory powers that be.

    Simon Gibbs

    1st February 2011

  3. Simon

    We may be going off point but I fail to see how questioning the probity of those who were involved in the process can be seen as anything other than a highly personal criticism of those involved. What you have said is “what were they told?”

    This calls into disrepute the Association and the then Council (of whom I was for at least part of the relevant period, a member, as indeed were a number of friends and professionals). You might want to consider para 5.3 of Code of Conduct in that regard.

    I am sorry Simon, however well meaning you may consider your crusade to be, to resort to such innuendo is, in my view, unacceptable.

    Glenn Newberry

    1st February 2011

  4. Compare the solcitor:

    Dedicated advocacy training on the LPC. The need to pass advocacy assessments.

    If she wants higher rights they have to take a written exam (3 hours) on evidence and prof. standards and then complete an assessment.

    The assessment (civil) involves drafting a skeleton argument (which is marked) making an application to a Master and then conducting a trial. All of this is assessed.

    Then, and only then, do they have higher rights.

    Compare and contrast to cost lawyers. A one day course with no assessment. You could sit at the back and read the paper and still get higher rights. Madness.

    It does not help the ACL to have such low standards; even costs lawyers seem to think it’s a bit of a joke.

    (And Glenn, shooting the messenger does not help your case.)

    Defendant Solicitor

    1st February 2011

  5. Does anyone seriously think that when Nick Bacon et al are told their opponent on an appeal of a point of law to a high court judge is a costs lawyer they feel worse, rather than better, about their case? As others have noted, even most costs lawyers appear to think the position is remarkable, and this tends to suggest that something is wrong.

    Glen, with respect, you are slightly overreacting: “what _were_ they told?” was obviously said with a tongue in a cheek, and if you think this is an accusation of misconduct by innuendo, you ought to take a holiday! We all know how low the standards of some costs advocacy is, and it is fair to say that the MOJ’s position was extremely surprising, and suggests a lack of insight into this marketplace. And why assume “what were they told?” relates to you and your colleagues? The MOJ would have consulted the judiciary and others, and received information from many sources, before making its decision. It is indeed surprising that district judges and others did not comment adversely on the general standards of costs advocacy.

    Jacques Hughes

    1st February 2011

  6. Glenn,

    Previous comments on this issue mentioned the fact that the MoJ approved the granting of these rights without requiring any further training. That appeared, to me, to naturally beg the question as to what the MoJ was told or understood about the skill of existing members. The explanatory memorandum (http://www.opsi.gov.uk/si/si2006/draft/em/uksidem_0110752066_en.pdf) to the order explained that the Association sought designation so it could “grant the right of audience…to properly qualified and trained members”. That is the issue at the heart of my “crusade”.

    I apologise entirely if raising my rhetorical question has been taken as a personal slur on the integrity of those who fought so hard to obtain these rights. That was certainly not my intention or meaning. The question of whether existing members required further training or accreditation is/was a matter of opinion and, in the context of a regulated body seeking protected body status, one of legitimate public debate. Any difference of opinion I hold (however misguided) as to whether such training or accreditation is/was required was not intended to call into question the integrity of those Council members who made representations to the MoJ.

    Glenn, I always welcome your lively input into these debates, however critical of my own opinions they may be.

    From now on I’ll try to limit myself to commenting on the future and the sunny uplands ahead.

    Simon Gibbs

    1st February 2011

  7. Whilst we are on the subject of the quality of advocacy of cost lawyers may I bring up the appalling costs knowledge of far too many District Judges and more disturbingly a few regional Cost Judges who appear to have little regard and understanding to the CPR and law in all it’s forms. It’s not just ALCD training that needs an overhaul.

    Anonymous

    2nd February 2011

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