Jon Robins looks at the work of law costs draftsmen and their bid for full rights of audience

There are some 850 members of the Association of Law Costs Draftsmen (ALCD). ‘All our members are subject to an educational training programme that they must pass,’ explains chief executive Bob Tanner.


‘They must also have at least five years’ practical experience – either working at a firm of solicitors, as a member of a costs-drafting firm or on a freelance basis.’ That is before they call themselves an associate. ‘Then they have to do another two years’ practical experience before they can call themselves a fellow,’ he adds. Members of the ALCD also have to carry professional liability insurance.


This contrasts with cost negotiators. Andrew Twambley, senior partner at Manchester firm Amelans, damned the new breed of cost negotiators instructed by insurers to cut down legal costs as ‘cost muppets’.


The outspoken solicitor is as complimentary about the draftsmen as he is dismissive of the negotiators. ‘They know what they are doing and it’s a pleasure doing business with them,’ he says. ‘They are gentlemen.’ He reckons that the ALCD accreditation is a meaningful qualification.


One costs negotiator says many of his staff are members of the Institute of Legal Executives and have law degrees. ‘While [other] people do not necessarily have formal legal qualifications, they have a high level of general education. We do not employ idiots,’ he said.


Mr Tanner, a sole practitioner based in Canterbury, reports that, as a result of the Ahmed v Powell ruling, most of the unregulated costs negotiating firms have allied themselves with law firms or sought to join the association.


‘Those of us in the ALCD can always tell if we have a costs negotiator on the other side, because of the way their argument is worded when the point of dispute comes up – it’s usually “cut and paste” syndrome,’ he says. Since the advent of predictable costs ‘a lot of the work of costs negotiators has gone out of the window, because they were usually involved in only the smaller claims’, he adds.


Gary Knight is a partner at Kain Knight, one of the largest costs-drafting firms, based in Bishop’s Stortford. He says fixed fees have meant ‘sweeping redundancies’ among the negotiators. ‘When the costs war first erupted, there were a lot of negotiators coming in taking the large clients, and the insurers were telling their panel solicitors they could only send work to a costs negotiator, and that did bite into the type of work we saw from the London firms,’ he says. ‘But because of our size and reputation there was plenty of other work to be had.’


The firm has been in business for almost 30 years and employs 40 draftsmen plus 25 ancillary staff. Kain Knight does a wide range of work from the NHS Litigation Authority and the Medical Defence Union to ‘one-man band’ law firms on the high street and big City defendant firms. How did the rise of the cost negotiator affect his practice? There have been one or two redundancies over the past year, he says, but since December there has been an increase in the better-quality work.


The costs negotiator says that while the amount of work that is litigated has diminished after fixed fees, in no way is the future bleak. Insurers are still sending their files under the fixed-fee scheme, and great savings have been made.


He explains: ‘With all due respect to the law-abiding solicitors, we have saved that through solicitors’ ignorance of the rules, or through solicitors who have tried to slip things through that they should not be claiming. Lawyers may call us names, but as long as that is happening, there will be a role for us. Solicitors should not be critical of us until they have put their own houses in order. If they did, there would not be a need for cost negotiators.’


How has the wider costs war affected the industry? ‘We have to keep a very careful watch on all the various changes over the last six years and there have been an awful lot,’ says Mr Tanner. ‘But it’s difficult to put a finger on how it has affected our members because a lot of them have been part of that battle.’


The ALCD is currently applying to the Lord Chancellor for full rights of audience before the courts for its members. ‘The rights we have always exercised have been under section 27 of the Courts and Legal Service Act 1990, where the representatives of an authorised litigator have a right of audience before proceedings in chambers,’ explains Mr Tanner. The only proceedings generally conducted in private are in the family court. ‘Strictly speaking none of our members have a right of audience, and so we’ve made an application to correct this,’ he says.


‘I have only heard one case since the Civil Procedure Rules where one of our members has been refused rights of audience, and that was on the application of some very


white-wigged barrister. But if our application succeeds, it will give us some more legal clout.’