At a time of ever-greater competition, one of solicitors’ biggest selling points is that they are a regulated profession, with all the reassurance and protections that gives clients. This makes it all the more surprising that solicitors are then willing to entrust the recovery of their costs to unregulated people.
I and other members of the Association of Costs Lawyers (ACL) have files full of stories about mistakes made by unqualified opponents, to the benefit of our clients, of course. One of my ‘favourites’ was the bill that was so poorly drafted – including issues such as hourly rates, fee-earner status and travelling – that my opponent’s entire profit costs were disallowed with the added insult of a requirement to pay my client’s costs in full. Don’t forget also that as the person signing the bill of costs, the solicitor is firmly in the dock even if they did not draft it.
Costs draftsmen, costs negotiators, costs monkeys – call them what you will. What they all have in common is that few have any formal qualifications in costs work and no requirement to keep up-to-date with the law. Their appearance in court is open to challenge. They have no regulation. They are under no obligation to carry professional indemnity insurance. If something goes wrong with their work, it is the instructing solicitor who carries the can.
By contrast, ACL members have all those things – there is a rigorous training scheme, annual CPD and compulsory indemnity insurance. We have rights of audience, which will become particularly important for case management hearings at which budgets are scrutinised. We are subject to independent regulation by the Costs Lawyer Standards Board – which in turn is overseen by the Legal Services Board (LSB) in the same way as the Solicitors Regulation Authority, Bar Standards Board and the rest – while clients can also complain about us to the Legal Ombudsman.
A recent survey of our members found that the majority had come across unregulated costs people inflating their bills by considerable amounts, some by over 50%. Their lack of knowledge and failure to grasp the issues often just ramp up costs – it is not uncommon to receive points of dispute that object to every single item but in a general way (“Excessive – disallow”) and only end up adding unnecessarily to the time spent preparing for the assessment and the length of the hearing itself. This benefits nobody.
I suspect that the continuing use of non-costs lawyers is often simply because solicitors do not appreciate that the person holding themselves out as a costs expert does not necessarily have the credentials to back up their claim. Why would a solicitor do that put their costs at risk like that? Speaking at our annual conference earlier this month, LSB chief executive Chris Kenny urged us to promote costs lawyers and ensure that “judges and clients alike are aware of what the ACL badge means”. I and the members of the new ACL council have pledged to do exactly that.
Costs lawyers are concerned with all aspects of legal costs that are controlled by both statute and common law. Our role has arguably become more important since 1 April, with most observers expecting a significant rise in solicitor/own client disputes with the end of recoverability.
Then there is, of course, the imposition of compulsory costs management in most litigation – no longer is the focus on after-the-event assessment of costs, but on getting your budget right up front. Just last month, the High Court warned that it will usually be “extremely difficult” to persuade a court to revise a budget that contains mistakes.
Also speaking at our conference, Mr Justice Ramsey – the judge in charge of Jackson implementation – said he saw us playing a key role in future. He said: “The expertise of people in this room is to say, ‘We’ve seen what happens at the end of litigation and now we’re going to apply that to the beginning of litigation’. That is an essential but difficult task.” And it is one we are uniquely qualified to do.
Murray Heining is the chairman of the Association of Costs Lawyers