In a future where solicitors could be bound by their estimates and costs management becomes increasingly important, costs draftsmen could have a greater role to play, writes Neil Rose
Rise to the challenge
If the Association of Law Costs Draftsmen (ALCD) has its way, its members will play an even more significant role in the determination of costs in a post-Jackson review world.
Most judges do not approach costs issues with any relish and, in its final submission to Lord Justice Jackson, the ALCD said it could help judges by providing suitably ­qualified ALCD fellows as assistants. They would write a brief note to the judge based on observations on the figures supplied and a suggested figure to be allowed. This would enable the judge simply to approve, or otherwise, the suggested figure.
‘This need not be an expensive operation and can be carried out ­remotely. Such a scheme could also be used to assist judges setting budgets or dealing with any other costs-related issue,’ the ALCD said.
This could be especially useful because far greater use of budgets and estimates as part of ‘costs management’ seems one inevitable outcome of the Jackson review.
In his preliminary report back in May 2009, Jackson said costs ­management would be an adjunct to normal case management, and in essence involves the court’s ­specific approval or sanction of costs at stated or approved levels at regular stages in the case, ­meaning those sums would, in ­normal circumstances, be allowed at the end of the case with no ­argument (and conversely make it harder to claim sums in excess of the estimate). It emphasises the need for firms to provide proper ­detailed estimates, but no more onerous than they should already be giving (but in ­reality often do not) under the ­Solicitors Code of Conduct.
In June 2009, ­Jackson set up a pilot in ­Birmingham’s Mercantile and Technology and Construction courts to test whether judges can actively control costs throughout a case in this manner – if successful, it would also eliminate most ­detailed assessments. The separate year-long costs-management pilot for publication ­proceedings in ­London and ­Manchester has very similar guidelines and is evidence of ­support from the Civil Procedure Rule Committee for the prospective, rather than retrospective, ­control of costs.
ALCD president Matthew Harman of south-east firm Matthew Harman & Partners says costs management is a ‘great opportunity’ for costs draftsmen. ‘Our job will move from being something carried out at the end of a case to being an ongoing task with the solicitor throughout the case,’ he says.
‘At the moment people are just paying lip service [to estimates],’ says Amanda Ashton, a director of Compass Costs. ‘They are putting estimates in that are pure guesses.’ A ­future where ­solicitors are bound by their ­estimates should sharpen attention significantly, but the judiciary needs to up its game too. ‘Judges don’t have the skill sets to do it,’ she says.
Nic Edmondson, commercial legal director of Manchester-based Just Costs Solicitors (which ­employs a large number of costs draftsmen), says: ‘Costs management is, in reality, more likely to be driven by clients and not the court. The commercial imperatives of ­carrying out litigation are more ­apparent to those engaged in commercial enterprise, such as clients and third-party funders. ­Additionally, the commercial ­realities of budgeting and carrying out casework fall more within the experience of those actually ­engaged in handling litigation. The ­importance of costs management is already on the increase and is likely to continue.’
In a fix
The flipside of Jackson is likely to be fixed costs across the fast track. Achieving it, however, will not be easy. At Jackson’s ­behest the Civil Justice Council facilitated industry talks between July and ­November to try to agree fee levels – but they got nowhere near.
There is no need for carefully drawn bills of costs in a fixed-fee world, of course, and the use of standard or fixed fees by the Legal ­Services Commission has ­already hit the amount of legal aid work handled by costs draftsmen, most notably in family work.
‘It’s probably going to have a fairly significant effect on a good number of our members who work from their kitchen tables,’ says Harman (the phrase ‘kitchen table draftsman’ is frequently used to describe freelancers who work from home). ‘But it’s just about people being ­prepared to adapt.’
Mark Friston of Kings Chambers in Manchester is currently the only barrister also to be a member of the ALCD. He says that, while costs management offers ‘real opportunities for costs draftsmen who are team players, especially if they are well versed in IT’, Jackson’s focus on high-volume personal injury work is not good news for those in that part of the market.
‘Even if the number of litigated personal injury claims remains the same, it is unlikely that the skills of costs draftsmen will be required in any but the most difficult of cases. If costs draftsmen are going to thrive in that market, it will be on price alone. I suspect that that
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Legal Services Directory 2010