High Court refuses to lower £150k costs cap on QASA battle

A judge has come down on the side of the Legal Services Board (LSB) and thrown out an application to reduce the £150,000 cost cap set on the ongoing battle over the new Quality Assurance for Advocates (QASA) scheme.

At a 23 October hearing Mr Justice Bean rejected the Criminal Bar Association’s (CBA) argument that Herbert Smith Freehills’ (HSF) now-abandoned £400,000 costs estimate (9 October 2013) for the LSB had swayed the original cost decision, and refused to lower the limit.

He said that the £400,000 estimate “was at first sight staggering” but added: “I do not interpret Ouseley J’s decision as attaching importance to the figure”.

The Criminal Bar Association (CBA), represented by Doughty Street Chambers’ Charlotte Kilroy, argued that the Bar Standards Board, which is an interested party in the case, should not receive any costs if the CBA lost and that the LSB should receive £75,000, not £150,000 as previously agreed.

Baker & McKenzie partner Joanna Ludlam instructed Kilroy for the CBA, though the body was represented by Blackstone Chambers’ Dinah Rose QC and Tom De La Mare QC for the submissions leading to Mr Justice Ouseley’s 7 October decision.

The CBA’s lawyers have all been working pro bono on the case. Kilroy argued that Ouseley J’s cap was influenced by HSF’s £400,000 costs estimate for the three-day hearing. That estimate was thrown out and the firm replaced by Field Fisher Waterhouse (FFW). FFW senior partner Matthew Lohn and associate Carina Dalton have instructed 11 KBW’s Nigel Giffin QC leading 39 Essex Sreet’s Duncan Sinclair.

The new costs estimate submitted for the LSB is now just £240,000. 

The QASA battle pits two sides of the legal industry against each other, with the CBA launching proceedings against the LSB over its decision to pass the controversial scheme for grading criminal advocates. It argued that the issue is of public interest and should not burden the four claimants – representatives of the CBA – with high costs.

But the LSB argued that each of the CBA’s 1,500 members should pay £100 each to fund the case and Mr Justice Ouseley decided to cap costs at £150,000 on that basis. 

Bar Circuits have now combined with the CBA to indemnify the claimants for the whole £150,000 cap, which they will have to pay if they lose the case.

Bevan Brittan commercial litigation head Iain Miller has instructed Fountain Court’s Timothy Dutton QC and Tetyana Nesterchuk for the BSB.

The fourth interested party is the Law Society of England and Wales, represented by Matrix Chambers’ Christopher Buttler, instructed by Law Society lawyer Natalie Turner.

The case will now go to a full judicial review hearing before Sir Brian Leveson and Mr Justice Bean at the Divisional Court on 29 November 2013.