Skimming through the SRA Code of Conduct for Solicitors introduced in November last year I am tasked with considering any costs implications thereof. This is not something that I have had to consider before as knowing there was/is a code, and merely checking the relevant provisions when referenced, would usually be been enough for a costs lawyer (and probably only of limited use even in a Solicitors Act assessment).
The whole concept is rather daunting now that I have been through it. It strikes me that there is limited concrete guidance with significant, and unidentified, sanctions: “You must exercise your judgement in applying these standards”; “You are personally accountable for compliance with this Code”; and “A serious failure to meet our standards or a serious breach of our regulatory requirements may result in our taking regulatory action against you.”
A couple of the sections hint at costs elements but, to be honest, there does not seem to be anything new here. Certainly nothing that is not covered in much more detail in relevant case law – on the implications of estimates on fees given to your client on any assessment, for example.
In Section 4 “Client money and assets” you are told that “You properly account to clients for any financial benefit you receive as a result of their instructions, except where they have agreed otherwise.” And “You safeguard money and assets entrusted to you by clients and others.”
In Section 8, “Client information and publicity” there is provision that: “You give clients information in a way they can understand. You ensure they are in a position to make informed decisions about the services they need, how their matter will be handled and the options available to them.”; “You ensure that clients receive the best possible information about how their matter will be priced and, both at the time of engagement and when appropriate as their matter progresses, about the likely overall cost of the matter and any costs incurred.”; and “You ensure that any publicity in relation to your practice is accurate and not misleading, including that relating to your charges and the circumstances in which interest is payable by or to clients.”
Focussing in on what is hinted at here, and the fact that there is a definite wind of change in the air that the indemnity principle and the concept of time recording/chargeable hours will become less important or obsolete over time, it does concern me how capable practitioners can reasonably be expected to be on pricing. Appreciating that what lands on a costs lawyer’s desk is usually the problem cases there remains in most areas of the law a lack of effective transparency on pricing (both at the outset and during any proceedings). Even geared up for assessment as we are (we do tend to provide firm estimates or caps for stages throughout the assessment process) when litigation, to include assessment, is dependent on the conduct of your opponent to a great degree these are not always right.
Even in budgeted litigation it is abundantly obvious that parties can approach litigation from entirely divergent perspectives. What you thought was a fair and accurate reflection of the landscape can fall apart relatively quickly and we are too aware of how much the courts and clients love amendments to costs during the lifespan of a case regardless of the merits.
Ultimately, I suspect, the good will remain good regardless of the changes as these will be concepts entrenched in the running of their case loads and practices. There is also a middle ground of those that make mistakes and, one would hope, recognise and deal with those mistakes efficiently and promptly. It will, however, always be the bad that these will be aimed at. Will self-regulation, and reliance on exercising “your judgment” assist with those that simply do not wish or want to do the right thing assist? – probably not and it will continue to be the reputation of the profession as a whole that is likely to be unfairly impacted by the negative coverage arising from the “maverick”.
This article by Francis Kendall, Vice-Chairman of the Association of Costs Lawyers appeared in Thomson Reuters DR blog on 21 February 2020