Posts by Simon Gibbs

Costs Lawyers delegating work

By on May 28, 2019 | 0 comments

The case of Allen v Brethertons LLP [2019] EWHC B3 (Costs) has received a fair amount of commentary in relation to the entitlement of non-Costs Lawyers to undertake certain “reserved activities”. Costs Judge Master Leonard had no difficulty accepting that where a costs draftsman prepared a bill of costs under the supervision and instruction of a Costs Lawyer, that, although bill preparation amounted to a “preparation of a reserved instrument” and was therefore a “reserved activity”, the costs draftsman became an “exempt person” in this situation and the costs of preparing the bill are recoverable in principle. Further, in relation to a costs draftsman attending a costs hearing: “The issue of his right to appear as an advocate on costs hearings has come up before. His case is probably on all fours with Kynaston v Carroll but it is in any event my practice, for the avoidance of doubt, to grant him a right of audience.  That was the basis upon which I heard him on 15 January.  He was, for the purposes of that hearing, an exempt person, and his costs of preparation for and attending that hearing are, insofar as reasonable and proportionate, recoverable.” The case of Kynaston was as far back as 2011 and it is surprising that the same tired arguments keep being re-run. Nevertheless, re-run it was and appears to have been, at least in part, inspired by (or at least support sought from) a guidance note published by the Costs Lawyers Standards Board (CLSB).  Master Leonard summarised the contents of that guidance as stating: “That guidance emphasises that the CLSB authorises and regulates individual costs lawyers, not authorised entities or licensed alternative business structures: and in consequence, that a Costs Lawyer cannot delegate reserved legal activities such as the exercise of a right of audience or the conduct of litigation.” The CLSB guidance note is titled Reserved Legal Activity Rights and was apparently published on 18 July 2018, although I do not recall the CLSB circulating it to Costs Layers.  It states: “This guidance has been written to clarify the authorised rights of a Costs Lawyer (as defined). It has been approved by specialist regulatory counsel, Gregory Treverton-Jones QC.” It is worth setting out in...

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Challenges to CFAs

By on May 10, 2019 | 0 comments

My office is in the process of being redecorated and this seemed like a good opportunity to have a general clear out. As part of this, I came across a couple of articles published in Litigation Funding magazine from February and April 2000. These show the dangers of trying to make predictions about the future of litigation. In one article, barrister Gordon Wignall was quoted as saying: “There is no reason now why either clients or unsuccessful defendants should not challenge the validity of their opponents’ lawyers’ retainers.  There are likely to be disputes over new-style funding arrangements for years to come.” In the other article, solicitor Kerry Underwood was quoted as saying: “Satellite litigation [over CFAs] won’t be a cottage industry it will be a palace industry. … Everyone who knows anything about this area knows how complicated it is.  There isn’t a hope in hell of district judges arriving at reasoned decisions.” 19 years later, I bet they both feel pretty...

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Warning issued over proposed new Costs Lawyer training course

By on May 8, 2019 | 0 comments

The Legal Services Board (LSB) is apparently minded to refuse the Cost Lawyer Standards Board’s (CLSB) proposals to introduce a new route of entry into the profession. The LSB chief executive Neil Buckley said: “Having considered the application and responses provided by the CLSB to a number of issues that the LSB has raised, the proposed changes continue to raise significant questions for the LSB and, as a result, we are considering refusing the application under paragraph 25(3) of schedule 4 to the [Legal Services] Act.” Mr Buckley said the proposed approach to granting rights of audience appeared “inadequate” and to contradict the wider outcomes-focused approach of the CLCA: “In particular, the proposal to allow for rights of audience to be gained through attendance at a one day training course, with no assessment, is at odds with the CLSB’s rationale for the CLCA, to shift away from an inputs based model and towards an outcomes-focussed assessment based model. The proposal would appear to set the bar considerably lower than other approved regulators in relation to awarding rights of audience. The CLSB has not presented sufficient evidence to justify this approach.” It is not clear whether the LSB is aware that the majority of current Costs Lawyers gained their rights of audience through no more than attendance at a one or two-day training course with no assessment. I wrote about this in 2011.  At the time, I commented that: “In relation to advocacy, the ACL has not set the bar too low. It never set one in the first place and shows no plans to do so in the future.” The LSB appears to be concerned that the CLSB is now in danger of repeating the same error in relation to its new proposed qualification route. In relation to the old ACL training course, I wrote: “There appear to be one of two ways of viewing this issue: Advocacy, at least in relation to detailed assessment proceedings, is something requiring little or no skill or experience. This includes costs appeals before High Court Judges and Circuit Judges. A level of “competence” can be achieved by those who may have had no previous advocacy experience in a 3 hour training session....

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Careful now

By on Apr 12, 2019 | 0 comments

The Civil Litigation Brief blog contained an interesting post about the dangers of lawyers working on the move and being overheard discussing confidential client matters or allowing confidential information to be read over their shoulders or leaving legal papers behind. The costs profession is not immune.  Of the various examples given on Twitter: “Absolutely correct. I once called to collect some files from a cost draftsman’s office. Manager greets me and says he’ll just get the files …. from his car. I almost had an apoplectic fit!” – Donna Beckett‏@BeckettandCo “I once received a call from a bouncer of a London pub. Our cost draftsman had left one of our files there. Apparently it was a con with Counsel!” – Peter...

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