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29 October 2018
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Standing up for costs lawyers: Allen v Brethertons LLP

By Francis Kendall, Vice-Chair, Association of Costs Lawyers

It is now 11 years since the Legal Services Act was passed and eight since the regulatory regime it created fully came into being. And still, unfortunately, there are those elsewhere in the legal profession who do not recognise the difference between Costs Lawyers and costs draftsmen. 

In short, Costs Lawyers are qualified, regulated – with all the consumer protections, such as professional indemnity insurance, that come with that – and have independent rights to conduct litigation and rights of audience. As a result of the Act, they stand alongside the seven other recognised legal professions, including solicitors and barristers. 

Costs draftsmen may have some training and insurance, but equally may not – they are unregulated and allowed to appear at costs hearings only under what we consider an outdated ‘legal fiction’ that they are temporary employees of the law firms that instruct them. 

The issue has come to the fore again because of a ruling in early October by Master Leonard in the Senior Courts Costs Office, in which he criticised a law firm for the way it treated a Costs Lawyer instructed by a former client to challenge its bill. 

In Allen v Brethertons LLP [2018] EWHC B15 (Costs), Norman Allen engaged Checkmylegalfees.com, which is not a regulated legal business, to look at what he had been charged. 

The judge recounted how Kerry-Anne Moore, a Costs Lawyer employed by Checkmylegalfees.com, informed the firm in October 2017 that she had been instructed and requested copies of documents from their file. Her letter enclosed a form of authority electronically signed by the claimant. 

The master recounted: “[Brethertons] did not accept this as sufficient to allow them to release papers to Ms Moore, indicated that the signature on the form of authority did not match the claimant's signature on their records, and insisted upon receiving a form of authority direct from the client. The papers were finally sent to Ms Moore on 19 December 2017.” Then, in February 2018, Brethertons wrote directly to the client about the matter. 

In a footnote to his ruling, Master Leonard pointed out that, as a Costs Lawyer regulated by the Costs Lawyer Standards Board (CLSB), Ms Moore had the right, in cases such as this, to conduct litigation and to exercise a right of audience. 

“In correspondence with the defendant, she identified herself as such from an early stage and from the outset requested that the defendant communicate with Checkmylegalfees.com, rather than with the claimant directly. 

“That seems to me to be consistent with the current provisions of the Solicitors' Code of Conduct (at chapter 11), which indicate that a solicitor should not contact a party directly where that solicitor is aware that that party has instructed ‘a lawyer’, defined in the glossary to the Code of Conduct to include ‘a profession whose members are authorised to carry on legal activities by an approved regulator other than the SRA’.” 

Master Leonard said that while Brethertons may have had some initial concerns about its authority to release the papers, by the time of the February 2018 letter, there could have been “no mistake” about the claimant's wishes or Ms Moore's professional status, which it could have easily checked on the CLSB website. 

He concluded: “Whether the defendant has complied with the code of conduct is not a matter for me, but I would offer the view that Ms Moore, when acting as a Costs Lawyer with a right to conduct litigation, is at the least entitled to expect from the defendant the same professional courtesy as a solicitor would expect. It does not seem to me that she has received it.” 

It is vastly rewarding to us, as a profession, to have such clear and unequivocal confirmation of our status from such an eminent source. 

Many members of our association worked very hard to secure independent rights of audience and this ruling is a reminder that we expect, and have every right to expect, our solicitor colleagues to show us the same professional respect that we show them.

Francis Kendall is vice-chairman of the Association of Costs Lawyers and a practising Costs Lawyer at Kain Knight.

This article was first published in the Practical Law Dispute Resolution Blog on 25 October 2018.

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