QASA claimants granted costs cap – but at 10 times the level they wanted

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10 October 2013

High Court: reciprocal caps

The High Court has capped the costs exposure of the four barristers bringing a judicial review against the Legal Services Board (LSB) over the Quality Assurance Scheme for Advocates (QASA) – but at a level 10 times the one they had proposed.

The four barristers – Katherine Lumsdon, Rufus Taylor, David Howker QC and Christopher Heretson – sought a protective costs order (PCO) that would have limited to £15,000 the combined costs they would have to pay the LSB and the Bar Standards Board, which is an interested party to the action, in the event they lost.

Mr Justice Ouseley said that while this would have been fair “if just the four of them were claimants in substance”, it was not the case here, and instead set the level of the PCO at £150,000.

“The Criminal Bar Association (CBA) stands behind the four claimants, and its resources and ability to raise funds from its membership as a whole are very relevant,” he ruled on Monday.

“The case is said to be important to its 3,800 members, and to have their near unanimous support. The defendant and interested party are also funded by the legal profession as a whole, the latter by the Bar in general.

“A fair balance has to be struck between these interests when one part of the legal profession and the Bar takes issue with the decision of the regulator, and seeks to make the legal profession more widely pay almost all of the costs of this action, if it is successful.

“To my mind a much larger share of the costs risk must fall on the CBA and its members or supporters.”

The judge said that while the CBA may not have the funds at present, “there is no evidence of significant but unavailing efforts to raise funds for this litigation”.

He said it was realistic to suppose that 1,500 members of the CBA would each put in £100 to cover the costs. “I recognise the parlous position of many members of the CBA, but not that it is so generally parlous that the quite modest sum of £100 could not be raised from each of 1,500 members for an issue of this importance, or a lesser sum per head, if more were willing to step up to the plate.”

Ouseley J ordered a reciprocal cap of £150,000 in favour of the LSB and Bar Standards Board, even though the claimants’ lawyers are acting pro bono. “There is still the possibility of a pro bono costs award,” he noted.

The Solicitors Regulation Authority and ILEX Professional Standards – the other two regulators behind QASA – are also interested parties in the case, but the judge ruled that there be no liability for costs either way with them.

It has also emerged that the LSB has changed its solicitors in the case from Herbert Smith Freehills to Field Fisher Waterhouse, which regularly acts for the Bar Standards Board.

An LSB spokesman said the move was about managing its exposure to costs now the court has granted permission to bring the judicial review.

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