Costs News

02 May 2019
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LSB “minded” to reject Costs Lawyer training reforms

The Legal Services Board (LSB) is minded to refuse the Cost Lawyer Standards Board’s (CLSB) proposals to introduce a new route of entry into the profession, it has announced.

Taking the unusual step of issuing a warning notice, LSB chief executive Neil Buckley (pictured) 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.”

The move puts Costs Lawyer training on ice; issuing the warning notice means that the LSB now has up to a year to make a final decision on the application, although it is unlikely to take that long.

The LSB listed seven significant concerns it had about the proposed Costs Lawyer Competence Assessment (CLCA), the first of which was “the lack of information and evidence to support the stated rationale” for it.

Mr Buckley said: “In particular, the CLSB has not presented evidence to support its contentions about the barriers that exist with the current framework or been able to demonstrate how the proposed approach would reduce these barriers.

“Related to this, the CLSB has not been able to demonstrate that there would be a sufficient level of demand for the proposed CLCA. This is relevant to the potential cost of the CLCA to candidates and the commercial viability of the CLCA, given that potential providers of the CLCA will be required to develop and continue to deliver a sufficiently robust assessment of competence.”

The oversight regulator was concerned too about the “robustness and rigour” of the proposed assessment framework. Mr Buckley explained: “In particular, the application presents a competence and threshold standard, accompanied by a number of statements of competence and legal knowledge in different areas which list areas of expected knowledge and competence without defining the level or outcome expected.

“This material does not provide sufficient clarity on the standards or competencies that would be required, or how they could be demonstrated, which would enable a candidate to be authorised to provide reserved legal activities. The CLSB has drawn comparisons to the approach of other approved regulators; however, most other regulators have supplemented high-level competence statements with significant additional detail on what is expected to demonstrate competence at the point of authorisation.”

Mr Buckley said the proposed approach to granting rights of audience appeared “inadequate” and to contradict the wider outcomes-focused approach of the CLCA. “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-focused 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.”

Further, the LSB found that the application did not present sufficient evidence on the potential equality impact or wider cost implications of the proposal. “The CLSB has made statements about likely cost savings and positive equality impacts, but has not presented any evidence to support this or any modelling of costs.”

The next concern was “inadequate assurance” on the plan for implementation, delivery and to ensure the ongoing viability of the CLCA. “In particular, we note that the CLSB has not independently identified any risks associated with implementation, delivery or ongoing viability and therefore has not provided any plans for managing or mitigating these risks.

“Relevant to all of the above is that the CLSB is seeking one-stage approval for the new framework. This means that it is envisaged that the LSB’s approval would provide approval for the new framework to come into force, before an assessment provider has been appointed and the assessment framework developed and finalised. Therefore, the LSB is being asked to approve a framework when significant relevant detail remains outstanding.”

The final issue, said Mr Buckley, was the manner and process of consultation that the CLSB undertook to develop the proposals. “We note that the CLSB has only consulted on one model (the CLCA) and that its consultations asked closed questions that did not encourage feedback or suggestions on alternative approaches.

“Moreover, the CLSB has not published consultation responses and has not published its own reports on what has been raised and considered through consultation, nor has it made these available to the LSB. These issues are of particular concern given that the application presents a significant policy change.”

Mr Buckley said the LSB would make its final decision “based on evidence presented in the application and additional information including that received from the CLSB during the initial decision process”. He set the CLSB a deadline of 22 May to respond to the points he highlighted in his letter.

ACL chairman Iain Stark said: “We look forward to working with both the LSB and CLSB to achieve a beneficial outcome for Costs Lawyers.”

 

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