Herbert Smith Freehills kicked off QASA judicial review after high costs proposal

The Legal Service Board (LSB) has dropped Herbert Smith Freehills (HSF) from representing it in its defence of the Quality Assurance Scheme for Advocates (QASA) after the firm proposed a £400,000 cost estimate for a three-day hearing, The Lawyer can reveal.

HSF was defending the LSB from a judicial review launched by the Criminal Bar Association (CBA) over its decision to approve the new system of grading criminal advocates in four levels. Permission was granted for the judicial review on Monday (7 October) following paper submissions.

The team was led by partner Andrew Lidbetter, instructing 11 KBW’s Nigel Giffin QC for the LSB.

But HSF is understood to have been replaced by Field Fisher Waterhouse (FFW) which will take on the case against four claimants representing the Criminal Bar Association, due to be heard later this year. Giffin has retained his instruction and the case is being led by FFW senior partner Matthew Lohn.

Baker & McKenzie litigation partner Joanna Ludlam and counsel Blackstone Chambers’ Dinah Rose QC and Tom De La Mare QC are representing the claimants, CBA members Rufus Taylor, David Howker QC, Christopher Hewertson and Katherine Lumsdon, on a pro bono basis.

They have been fighting HSF over costs estimates for the case after it objected to the CBA’s application for a Protective Costs Order (PCO) for the appeal and proposed a £400,000 cost estimate for the hearing, which is slated to last two days. 

In its 23 September submission opposing the PCO the firm said the appeal was a private matter and that funding for the CBA case should be met by each of the CBA’s 3,816 members, paying £100 each.

The submission was rejected by Mr Justice Ouseley and the LSB changed its advisers.

No new cost estimate has yet been received from FFW. The court has granted the LSB and interested party Bar Standards Board (BSB) and any other objectors two weeks and seven days to contest the claim. After that point the claimants have another seven days to lodge further evidence before the beginning of the hearing window on 11 November 2013.

Mr Justice Ouseley has since granted the PCO and decided a mutual cap on costs of £150,000. If the LSB is succesful, the CBA’s costs exposure will be limited to £150,000, apportioned between the LSB and BSB.

If the CBA is successful the mutual PCO means the claimants can apply for a pro bono costs order of £150,000. CBA vice-chair Nigel Lithman QC of 2 Bedford Row Chambers is indemnifying the claimants.

Baker & McKenzie declined to comment. FFW could not be reached for comment. HSF did not return requests for comment.