There is a firm of costs solicitors whose website states, as one of the reasons to instruct them to deal with costs budgeting:
“As a firm of solicitors, all of our advocates have rights of audience at CCMCs, something which costs draftsmen and costs lawyers who are not employed by solicitors do not.”
It is not entirely clear what is meant by this statement and what meaning is intended to be given to “employed by”. Is this intended to be narrowly interpreted to mean a full time employee or to have the meaning traditionally used when referring to costs draftsman having rights or audience by virtue of being treated as being temporarily employed by the solicitors instructing them? There cannot be many CCMCs where a costs draftsman/costs lawyer would be instructed by anyone other than a firm of solicitors.
In any event, the statement is inaccurate in relation to costs lawyers.
There was, indeed, a problem with the old Statement of Rights for costs lawyers. Confusingly, a Google search for “costs lawyer statement of rights” still produces a result from the Legal Services Board for the old statement which limited costs lawyers’ rights to “proceedings being conducted under parts 43-48 of the Civil Procedure Rules 1999 (“CPR”) and under part 52 of those rules” (the pre-1 April 2013 costs provisions). This did not cover the introduction of costs budgeting under CPR 3.
However, the position was updated from 26 March 2014 in the Costs Lawyers’ Code of Conduct:
“As a Costs Lawyer you are a regulated person under the LSA and are authorised to carry on the following reserved legal activities:
- The exercise of a right of audience
- The conduct of litigation
- The administration of oaths
Provided that you are instructed to deal only with matters that relate to costs, you may conduct proceedings and represent clients in any court or tribunal, including any criminal court or courts martial, the Supreme Court or the Privy Council where:
- the proceedings are at first instance; or the proceedings include an appeal below the level of the Court of Appeal or Upper Tribunal, are on a first appeal (other than in the Court of Appeal) and the appeal itself relates to costs; or
- the proceedings do not fall within either of the categories above, but your instructions are limited to dealing with the costs of the proceedings; or
- the court or tribunal grants permission for you to conduct proceedings or to represent a client (or both).
Where proceedings relate to other matters, in addition to costs, the rights referred to above apply only to those parts of the proceedings (if any) that:
- relate solely to costs; or
- when they relate to other issues, solely those issues that are not in dispute.
A matter ‘relates to costs’ if it relates to payments for legal representation, including payments in respect of pro bono representation under s194 of the LSA and/or to payments made for bringing or defending any proceedings, but only if and to the extent that those monies are not damages. For the avoidance of doubt, this includes:
- Costs between opposing parties including costs management and budgeting.
- Solicitor and client costs but not if and to the extent that issues of negligence arise when a Lawyer competent to deal with allegations of negligence ought to be instructed instead.
- Legal aid, criminal costs, wasted costs or costs against third parties.”
Costs management and budgeting is therefore expressly covered. Interestingly, it does leave open an argument that a costs lawyer can only deal with the costs aspect of a CCMC rather than the case management part. Whether it would ever be sensible to entrust the case management part of a CCMC to a costs lawyers (or an employee of a costs firm) is a different matter.