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27 June 2019
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Front and centre: Allen v Brethertons LLP and the status of costs lawyers

Article for Thomson Reuters Dispute Resolution Blog by Claire Green, Chair of The Association of Costs Lawyers

Costs Lawyers may generally operate behind the scenes, but a recent case in the Senior Courts Costs Office provides a useful reminder of our professional status and the important role we play in the resolution of costs disputes. 

In Allen v Brethertons LLP [2018] EWHC B15 (Costs), Norman Allen engaged Checkmylegalfees.com, which is not a regulated law firm, to look at what he had been charged. A Costs Lawyer employed by the company, Kerry-Ann Moore, handled the work and at first the defendant law firm ignored her request for copies of documents from its file and instead wrote directly to the client. 

In a footnote to his ruling, which dealt with an application to deliver a statute bill, 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 it wrote directly to the client, 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 was 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 we expect our solicitor colleagues to show us the same professional respect that we show them. 

But that was not the end of the story. A second ruling in the case was published in May about the costs of the application. Brethertons argued that it should not have to pay the costs of two costs draftsmen and a litigation executive who assisted Ms Moore on the basis that the Legal Services Act 2007 prohibited her from delegating either a right of audience or the conduct of litigation to others. 

There is, of course, a distinction between reserved legal activities – which must be carried out by an authorised person or an exempt person as defined by the Legal Services Act 2007 – and other legal activity, which is undertaken lawfully whoever does it. 

Schedule 3 to the Act identifies various categories of exemption, where the court has granted a right of audience or a right to conduct litigation or where the work was undertaken at the direction of and under the supervision of an authorised person. 

Master Leonard found that the delegation arguments “miss the point”, as most of the work undertaken by the team did not constitute a reserved legal activity, and in so far as it did, the relevant persons undertook it as exempt persons because it was done under Ms Moore’s supervision and instruction. 

In concluding, Master Leonard said: “It has been necessary for me, in a reserved judgement which attracted a degree of interest among costs professionals, to identify significant shortcomings in the defendant’s conduct both toward its former client and his properly authorised Costs Lawyer. 

“The application itself was hard fought, the defendant taking a robust stance and defending its position with sophisticated arguments which I ultimately found to be insupportable. The claimant was given no choice but to see the matter through. Much trouble and expense could have been avoided had the defendant delivered a bill when it was asked to do so. 

“The defendant’s submissions on the costs of the application themselves furnish an example of the robust approach to which I refer. On proper analysis, they have no real merit. To accept them would have been to render Ms Moore’s working life, in practical terms, impossible.” 

Ms Moore said after the ruling that it was an important decision for those Costs Lawyers who act directly for members of the public, enabling them to function in a sensible and pragmatic manner in the same way that solicitors do, drawing when appropriate on the experience and abilities of other members of the costs profession and the wider legal profession who are not authorised to deal with such matters. 

In an ideal world, all costs professionals would be properly qualified and regulated Costs Lawyers, but in any case these rulings emphasise the value and importance of having one involved in costs disputes. Master Leonard has firmly dismissed this attempt to undermine our vital role in ensuring that the costs regime works smoothly and fairly. 

We are independent, regulated lawyers, with the attendant benefits and responsibilities that such status brings. I trust that this ruling will halt in their tracks what the judge called ‘arid technical objections’ to the recovery of the costs of our work. 

This article was first published on 19 June 2019 for Thomson Reuters Dispute Resolution Blog

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