Counting the cost of draftsmen

Solicitors should always use regulated costs lawyers or they could end up paying a high price for mistakes


At a time of ever-greater competition, one of solicitors’ greatest selling points is that they are members of a regulated profession, with all the reassurance and protections that gives clients. This makes it all the more surprising that solicitors are 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 that my opponent’s entire profit costs were disallowed. 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 they have no formal qualifications in costs work and no requirement to keep up to date

with the law. They appear in court solely at the discretion of the judge. 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 become 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), while clients can also complain about us to the Legal Ombudsman.

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 have the credentials to back up their claim. Speaking at our annual conference 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 just 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 and 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. 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 the ACL will play 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.