The barristers seeking to have the Quality Assurance Scheme for Advocates (QASA) declared unlawful have lost a bid to reduce their costs exposure.
Mr Justice Bean refused to amend the by Mr Justice Ouseley, which at £150,000 was 10 times greater than that the four claimants – who are supported by the Criminal Bar Association (CBA) – had sought.
The judicial review is against the Legal Services Board (LSB), with the three regulators behind QASA – the Bar Standards Board, Solicitors Regulation Authority and ILEX Professional Standards – as well as the Law Society  all interested parties.
The cap only applies to costs ordered in favour of either of the LSB and BSB, the other two regulators having pledged not to seek costs. In the event of an order being made in favour of both, the judge will apportion the costs to be paid to each.
In seeking to have the cap halved, the claimants highlighted the LSB’s change of solicitors. The LSB moved from Herbert Smith to Field Fisher Waterhouse, which as reported on Legal Futures – and indeed cited by Bean J – the super-regulator said was to aid “managing the LSB’s exposure to costs”.
When using Herbert Smith, the LSB suggested that its costs might reach £400,000 – a figure Bean J said was “at first sight staggering” – with the BSB’s around £100,000. The LSB’s rough estimate is now about £200,000.
The claimants argued that Ouseley J made the order without a proper understanding of what the true costs risk actually was.
Bean J said he accepted that the LSB changed solicitors before being notified of the PCO. “But it is a reasonable inference that it was made because the LSB too considered that an estimate of £400,000 for their costs of defending this case was grossly excessive.
“The application for a PCO, by flushing out this figure, thus had the salutary effect of reducing the total cost of this litigation even before Ouseley J gave his decision.”
However, Bean J said he did not interpret the original decision as attaching importance to the £400,000 figure. The costs cap was based on a per capita contribution by some members of the CBA; “[Ouseley J] said nothing about the total costs of the LSB, nor the total costs of the LSB and BSB”.
Bean J also refused an application for the LSB and BSB to submit costs budgets, saying that the PCO made such an order inappropriate.
CBA chairman Nigel Lithman QC said: “The result is a disappointment. That said, the real disappointment is that our own regulators do not think it appropriate to waive fees in litigating a matter so vital to their membership and about which their membership are so deeply opposed.”
The hearing of the judicial review will take place on 28 and 29 November, it has been confirmed.