9 February 2010

Costs draftsmen call for title protection

The Association of Law Costs Draftsmen (ALCD) is calling for the title of ‘law costs draftsmen’ to be protected as part of a modernisation push at the smallest of the approved regulators.

There are close to 300 costs lawyers – two of whom are now partners at law firms – forming part of the ALCD’s 800-strong membership. Costs lawyers are authorised persons for the purposes of the Legal Services Act, bringing them within the purview of the Legal Services Board.

The status gives them independent rights of audience and to conduct costs litigation.

However, it is estimated that there are many more costs draftsmen operating under the title without being ALCD members.

The ALCD recently received advice provided by the Legal Services Consultative Panel – whose role has now been taken over by the Legal Services Board – which recommended that the Lord Chancellor approve the ALCD’s new Code of Conduct and Publicity Code.

ALCD chairwoman Wendy Popplewell said the panel acknowledged the significant issue concerning the code’s enforceability. It recognised that ‘law costs draftsman’ is not a title protected by law to those holding ALCD qualifications, so it is entirely possible for an entity to contain principals who are not ALCD members, who would not be bound by the ALCD Code of Conduct and who, if in a majority, could decline to put into place the procedures necessary to ensure compliance with the code.

The panel also recommend that the ALCD should consider some form of entity authorisation (possibly using the legal disciplinary practice (LDP) or alternative business structure (ABS) models). This would be needed to bring any non-member principals within the scope of its regulations, and is already under consideration by the ALCD.

The panel said: ‘It is difficult to see how conduct rules could be applied consistently in the absence of a power to regulate such entities.’

Ms Popplewell said: ‘The working group sought our views; we agreed, pointing out that because membership is voluntary, we have no legal jurisdiction over a member who simply ceases to be a member. The situation will not change until regulation for costs draftsmen is compulsory. We told the working group of our grave concerns regarding non-members giving non-qualified legal advice.’

The panel went on to say that the ALCD is not entirely without sanction because a person who resigns their membership loses authorisation to exercise their rights of audience and to conduct costs litigation. ‘I am not entirely sure this is the case,’ said Ms Popplewell. ‘Many non-ALCD members continue to be heard in many courts, so would the loss of rights of audience be enough of a deterrent for a member not to resign? The right to conduct litigation is a different matter altogether. A costs draftsman not authorised as a costs lawyer cannot do it in their own right.’

Ms Popplewell added: ‘A professionally trained, qualified and regulated costs profession is in a strong position to meet the challenges that 2010 will bring with optimism and enthusiasm. The public can also have confidence, when instructing ALCD members, that they are being represented by properly trained and regulated professionals.’

The panel considered that the Code of Conduct in particular represented a significant improvement, especially with respect to client protection, and so was likely to strengthen the quality mark of the regulated law costs draftsman, thus further distinguishing them from the unregulated practitioner.

Tags: ALCD, approved regulator, costs draftsmen, Legal Services Board, Regulation, title