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Home > Legal policy > Advisory bodies > The Legal Services Consultative Panel

The Legal Services Consultative Panel Advice to the Secretary Of State on

An application by the Association of Law Costs Draftsmen for authorised body status

This advice was given to the Lord Chancellor in December 2004.


Background

Advice

The Legal Services Consultative Panel and publication of advice


  1. The Legal Services Consultative Panel (the Panel) was established by the Access to Justice Act 1999 in January 2000.
  2. The Panel has considered a reference made to us by the Secretary of State concerning an application from the Association of Law Costs Draftsmen ("ALCD") seeking to become designated as a body authorised to grant rights of audience and rights to conduct litigation to any of its members under the provision of section 29 of, and schedule 4 to, the Courts and Legal Services Act 1990. The Panel's advice was given in December 2004.
  3. The advice is published on behalf of the Panel by the Department for Constitutional Affairs. The complete document appears on the Department for Constitutional Affairs' website www.dca.gov.uk as well as being available in hard copy.
  4. Further copies of the Panel's advice are available from the Panel Secretariat (telephone: Louise Joyce on 020 7210 8816).
  5. The Panel comprises:

    Lord Justice Potter (Chairman) Mr John Hannam Mr Simon Sapper
    Mr Jonathan Acton Davis QC Ms Karen Mackay Mr Alan Street
    Professor John Bell QC (Hon) Professor Richard Moorhead Ms Peta Sweet
    Professor Hugh Brayne Mr John Randall QC Mr John Young CBE
    Mr Jonathan Goldsmith Mr John P Randall
    		 


Summary


Principles

  1. In considering and putting forward its advice on the application, the Panel has had regard to the principle central to the policy of the Courts and Legal Services Act 1990 ("CLSA") and the Access to Justice Act 1999, namely the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new or better ways of providing such services and a wider choice of persons providing them, while maintaining the proper and efficient administration of justice.
  2. The Panel has also taken account of the five principles of good regulation identified by the Better Regulation Task Force (an independent group established in 1997 to advise the government) against which the appropriateness and effectiveness of any type of regulation should be tested, namely transparency, accountability, targeting, consistency and proportionality.


ALCD's application

  1. By its application to the Secretary of State dated 11 June 2003, ALCD is seeking to become designated as a body authorised to grant rights of audience and rights to conduct litigation to any of its members. In September 2003, the Secretary of State referred the proposals of ALCD to the Panel for advice under section 18A(3)(b) of the CLSA.

The Panel's observations and recommendations

  1. The Panel makes the following observations and recommendations

    • Rights of audience on all determinations of costs under the Community Legal Service and Criminal Defence Service Regulations: The Panel supports the extension of the application to criminal cases and to the determination, re-determination and appeals arising out of them.
    • Rights of audience in all proceedings relating to costs before the House of Lords and the Privy Council: The Panel supports the ALCD's application for rights of audience extending to taxation proceedings in the House of Lords and the Privy Council.
    • Costs under the Civil Procedure Rules: The Panel considers the scope of the ALCD's application in respect of rights under the Civil Procedure Rules too broad. By granting rights of audience and rights to conduct litigation to ALCD members under all parts of its application, members would be entitled to greater rights than they actually seek. To that extent, the Panel recommends refusal of certain rights under the Parts as stated in the main body of the advice.
    • The right to litigate under the Solicitors Act 1974 or any subsequent enactment of the provisions thereof: The Panel supports the ALCD's application with respect to sections 64 (3) and (4), 68, 69, 70, 71 and 74 of the Solicitors Act 1974.
    • Education and training: The Panel is satisfied that the training provisions and Code of Practice issued by the ALCD are of sufficient standard.

Conclusion

  1. The Panel recommends to the Secretary of State that the application be approved, subject to the limitations set out in paragraphs 16.4, 16.5 and 16.7 of its advice.


Advice


Introduction

  1. This Advice relates to an application by the Association of Law Costs Draftsmen ("ALCD") to the Secretary of State dated 11 June 2003 seeking designation as a body authorised to grant its members rights of audience and rights to conduct litigation as follows:

    1.1 Rights of audience in all proceedings being conducted under parts 43-48 of the Civil Procedure Rules 1999 ("CPR") and under Part 52 of those rules with regard to appeals from detailed assessment hearings before a High Court Judge or a Circuit Judge, such rights to exclude an issue of entitlement to a wasted costs order arising solely under CPR 44.14(1)(b) other than in connection with proceedings commenced under (1.5) and (1.6) below.

    1.2 Rights of audience on all determinations of costs under the Community Legal Service and Criminal Defence Service regulations.

    1.3 Rights of audience in all proceedings relating to costs before the House of Lords.

    1.4 Rights of audience in all proceedings relating to costs before Her Majesty's Privy Council.

    1.5 The right to litigate in all proceedings under Parts 43-48 of the CPR and under Part 52 of those rules with regard to appeals from detailed assessment hearings listed before a High Court Judge or a Circuit Judge.

    1.6 The right to litigate under sections 64 (3) and (4), 68, 69, 70, 71 and 74 of the Solicitors Act 1974 or any subsequent enactment of the provisions thereof.

  2. The ALCD currently enjoys no such formal rights. However, in practice, members currently exercise these rights under the discretion of the Costs Judges.
  3. The Application is made under section 29 of the Courts and Legal Services Act 1990 ("CLSA"). In September 2003 the Secretary of State referred the proposals of ALCD to the Legal Services Consultative Panel ("the Panel") for advice under section 18A(3)(b) of CLSA.
  4. In considering and advising on the Application, the Panel has had regard to the principle central to the policy of CLSA and the Access to Justice Act 1999, namely the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new or better ways of providing such services and a wider choice of persons providing them, while maintaining the proper and efficient administration of justice.
  5. The Panel has also taken account of the five principles of good regulation identified by the Better Regulation Task Force (an independent group established in 1997 to advise the government) against which the appropriateness and effectiveness of any types of regulation should be tested, namely, transparency, accountability, targeting, consistency and proportionality.


Background to the Application

  1. Rights of audience are determined by the provisions of section 27 CLSA (as amended by the Access to Justice Act 1999) which provides that a person shall have a right of audience, where:

    (i) He has a right of audience before that court in relation to those proceedings granted by the appropriate authorised body; and
    (ii) That body's qualification and rules of conduct have been approved for the purposes of this section, in relation to … that right

  1. The ALCD is a limited liability company regulated by Memorandum and Articles of Association with bye-laws, a code of conduct and training regulations covering continuing professional development.
  2. The ALCD was formed in 1977 to promote the status and interests of the profession of law cost draftsmen generally and to maintain professional standards. The ALCD's role is to regulate the conduct of its members who are law costs draftsmen and those engaged in the practice of law costs.


The Panel's considerations

  1. The Panel met the Senior Costs Judge, Chief Master Hurst, on 24 October 2003 to discuss the ALCD's application. A number of concerns were raised as to the scope of rights sought by the ALCD. Chief Master Hurst offered his views on the technical aspects of the work of the ALCD and the likely effect of grant of rights of audience in the terms sought. The Panel is grateful for Chief Master Hurst's assistance.
  2. The Panel established a working group to consider the ALCD's application. Members of the working group met ALCD officials on 24 November 2003 and expressed concerns that the ALCD application might be too broad in scope in relation to the rights sought.
  3. On 25 May 2004, the ALCD responded with a revised statement of rights sought. Following receipt of the revised statement, the advice of the DCA's legal group was sought, after which further comments of the ALCD and Chief Master Hurst were obtained. The Panel's consideration set out below relates to the revised statement.


Scope of the application

  1. The rights of audience and rights to conduct litigation applied for by the ALCD would enable them to accept instructions direct from legal representatives or from litigants in person and other bodies.
    In relation to assessment proceedings, the extent to which the rights of audience sought involve advocacy is no different from the work which members of the ALCD currently undertake. However, at present, members of the ALCD can only be heard on the basis that, for the purposes of the proceedings, they are deemed to be employees of the solicitors on the record, whose actions are binding upon such solicitors, who in turn are answerable for the conduct of the ALCD member.
  2. Thus, by applying to become designated as a body authorised to grant rights of audience and rights to conduct litigation to any of its members, the ALCD seek to formalise advocacy rights which members currently enjoy only in a delegated capacity.
  3. The Panel understands that the ALCD does not seek full rights of audience and rights to conduct litigation under all the parts and regulations referred to in its application and to this extent the application appears to be broader in scope than intended.
  4. The Panel therefore advises that the rights of audience and rights to conduct litigation sought by the ALCD should be granted subject to the qualifications which appear below.
  5. Rights of audience and the right to litigate in all proceedings under Parts 43-48 and under Part 52 of the Civil Procedure Rules

    16.1 Rights of audience sought by the ALCD extend to family proceedings under Parts 43, 44, 47 and 48.

    16.2 In court proceedings, having concluded their submissions on the substantive issue, both counsel and solicitor advocates are qualified and, through their involvement in the case already equipped, to make any necessary submissions as to the entitlement to costs. To grant to ALCD members the rights to make supplementary submissions would merely increase costs and potential delay.

    16.3 The Panel recognises the expertise of the ALCD in issues relating to costs. Thus, where, following the substantive proceedings, an ALCD member appears on a detailed assessment, and an issue as to entitlement arises, the Panel considers that ALCD members should have the right to make submissions in relation to entitlement to the costs of the assessment proceedings. This will permit the issue of entitlement to be addressed without the delay or the cost of calling on solicitors or counsel to deal with that issue. Similarly where ALCD members appear on appeals relating to costs, they should be allowed to argue entitlement to costs of that appeal.

    16.4 The Panel does not consider that ALCD members should be granted rights of audience which would enable them to argue for or against penal orders made in respect of the conduct of a party or his/her representative, save in respect of proceedings in which the ALCD member appeared as advocate.

    16.5 Thus the Panel does not consider that ALCD members should be granted rights which enable them to become involved in applications under Part 44.14 (Court powers in relation to misconduct) unless the application arises in proceedings in which the ALCD member has acted as advocate.

    16.6 The Panel is in favour of ALCD members being granted rights of audience which would enable them to receive instructions direct from litigants in person under CPR 48.6.

    16.7 The Panel does not consider that the ALCD should be granted rights which enable ALCD members to become involved in applications under Part 48.7 (wasted costs orders) unless the application arises in proceedings in which the ALCD member is already involved as an advocate.

  6. Rights of audience in all proceedings relating to costs before the House of Lords and the Privy Council

    17.1 The application seeks to allow ALCD members rights of audience in all proceedings relating to taxation of costs before the Judicial Taxing Officer of the House of Lords and before the Registrar of Her Majesty's Privy Council.

    17.2 Taxation is currently carried out by the Judicial Taxing Officer of the House of Lords sitting with the Principal Judicial Clerk. The Judicial Taxing Officer is the Senior Costs Judge who has the power to delegate to other Costs Judges.

    17.3 The Panel is in favour of ALCD members being granted rights of audience in respect of taxation proceedings in the House of Lords and the Privy Council.

  7. Rights of audience on all determinations of costs under the Community Legal Service and Criminal Defence Service Regulations

    18.1 The application seeks to allow ALCD members rights of audience on the hearing of appeals arising out of detailed assessments by Costs Judges and District Judges, and before High Court Judges and Circuit Judges.

    18.2 The Panel is in favour of ALCD members being granted rights of audience in respect of the costs of criminal cases and to the determination, re-determination and appeals arising out of them.

    18.3 The ALCD's application does not extend to costs payable out of Central Funds under the Prosecution of Offences Act and the Costs in Criminal Cases (General) Regulations. It is not clear whether the ALCD seeks to grant such rights to its members. The Panel considers there is no reason why the rights of audience sought by the ALCD should not extend to proceedings under these statutory provisions.

  8. Education and Training

    19.1 The application seeks to ensure that Fellows have attained the appropriate level of education and experience. Students are awarded Associate status if they successfully complete a course of study which comprises a number of assignments and a written examination at the end of the course. Following a further 2 years predominantly engaged in practising in law cost matters, an Associate is automatically upgraded to a Fellow (the requirements are set out in the Background note on page 2). Those having a recognised legal qualification or at least 7 years experience as a law costs draftsmen may be exempt from all parts of the study course.


The ALCD's Training Regulations provide:

  1. 19.2 "All ALCD members are required to undertake a minimum of 7 hours Continuing Professional Development. All members are required to undertake a minimum of 4 hours Continuing Professional Development in Costs Law and Practice. The remaining 3 hours may be taken in an area of the member's choice, but such development must be of benefit to them in their daily duties. Members must keep a record of such Continuing Professional Development undertaken to comply with these Regulations, and produce such records with their applications for renewal of membership.
    Compliance with the Continuing Professional Development obligations shall be in accordance with the Code of Practice accompanying the Regulations."


The ALCD's Code of Practice provides as follows:

  1. 19.3 "Members of the Association are reminded that they are under a duty to keep up-to-date with developments in law and practice relating to their work. Failure to do so could compromise their proper standard of work and could constitute a breach of the Code of Conduct of the Association.
    2. The Continuing Professional Development hours may be attained by:
    1. Attendance at a course presented by an accredited training provider
    2. By students completing the assignments of the course run by the Association.
    3. By in-house training by an employer, provided that such training is by a person accredited by the Association as a training provider, and provided that the training is approved by the Council of the Association.
    4. Training provided by local groups of the Association, provided that such training is by an accredited training provider and the training is approved in advance of the Council.

    The 7 hours Continuing Professional Development may also be undertaken by writing law books or articles in legal journals, by legal research which is of use beyond the particular case and results in the production of a precedent, practice note or other form of written guidance, or by production of a dissertation counting towards a qualification recognised by the Association, or by undertaking courses offered by an authorised provider, delivered by audio/visual means.

    The requirements may be fulfilled by undertaken Distance Learning Courses offered by authorised providers, where this is provision for the answering of questions or for discussion.

    As guidance, the Council considers that training should be at an appropriate level and contribute to a Costs Draftsmen's general professional skill and knowledge, and not merely advance a particular fee earning matter.

    By way of guidance, in-house training is valuable in that it can be more easily made relevant to the needs of the Costs Draftsmen or the firm of Costs Draftsmen.

    Compulsory development hours shall be calculated by one hour's attendance or preparation constituting 2 hours Continuing Professional Development hours.

    19.4 The Panel is satisfied with the ALCD's training regulations.

  1. Conclusions
  1. 20.1 The Panel considers that ALCD members should be granted the rights of audience and rights to conduct litigation the subject of their revised statement, subject to the limitations set out in paragraphs 16.4, 16.5 and 16.7 above.

 

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