Bailey-Vella: Reintroducing remuneration certificates a good compromise
The Association of Costs Lawyers (ACL) has proposed working with the Law Society and Legal Ombudsman to revive a 1990s procedure as an alternative way for clients to challenge solicitors’ bills of less than £50,000.
The association pitched the idea of a modernised remuneration certificate procedure to the Civil Justice Council last month as part of its costs review.
The review allowed stakeholders to make supplementary submissions solely on the issues raised by the Court of Appeal’s decision in Belsner.
The court, led by the Master of the Rolls, Sir Geoffrey Vos, deprecated the proliferation of bill disputes over relatively small amounts of money reaching court, saying they were better suited for the Legal Ombudsman.
In its submission, the ACL recalled the procedure under the Solicitors’ (Non-Contentious Business) Remuneration Order 1994 that was revoked in 2009.
Under this, a solicitor’s costs had to be fair and reasonable having regard to all the circumstances of the case; since then, solicitor/own-client assessments have largely proceeded in the High Court.
“This is not sensible, especially on the scale of potential new cases following wide-ranging marketing campaign by firms such as checkmylegalfees.com. An alternative needs to be found,” said the response.
The court in Belsner held that portal cases were non-contentious business until proceedings were issued.
The ACL questioned whether the Legal Ombudsman had the capacity to deal with potentially increased volumes of cases, and whether the time taken to resolve costs disputes could delay the ombudsman in handling other complaints – it is currently under significant pressure to reduce the backlog of complaints.
Under the 1994 order, a client could seek a ‘remuneration certificate’ from the Law Society where the total costs were less than £50,000. In appropriate cases, the Law Society would issue a certificate stating what it believed would be a fair and reasonable amount for the client to pay.
The ACL said: “This methodology for dealing with solicitors/own-client disputes could be modernised and reintroduced. The ACL would propose a form of collaboration with the Law Society and Legal Ombudsman whereby an independent panel of cost lLawyers and other cost specialists could deal with lower-value disputes on the papers.
“This would provide a clear process for clients whilst ensuring that significant resources are not expended by HM Courts and Tribunals Service.”
The ACL also called for the provisions on pricing and costs in the SRA codes of conduct to be strengthened so that clients received an estimate of what may be recovered as well. The ACL proposed a template with figures for the likely damages, likely total costs, likely costs to be recovered and an estimate for any reductions.
ACL vice-chair David Bailey-Vella says: “The Court of Appeal in Belsner made very clear that it did not want disputes over lower-value bills to clog up the courts. But there are questions over whether the Legal Ombudsman is the best alternative.
“Using the expertise and specialism of ACL members – who are fully regulated lawyers – to reintroduce an updated remuneration certificate procedure offers a compromise that would work for both clients and solicitors alike.”
