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Dominic Cooper -

The rights of audience thing is, frankly, nothing more than a diversionary tactic. In all CMLF cases a Costs Lawyer is on record as acting. In the vast majority of CMLF cases, Counsel is instructed to deal with any advocacy. On the very rare occasions that I do the advocacy for CMLF I deal with any issues that are raised (in fact the last time I was in the SCCO for CMLF nothing was said despite pre-hearing rumblings, so I raised the issue with the Master myself!).

In relation to the Swain case, I was of course acting under the instruction of a solicitor, so it is a total non-issue.

In response to your last two paragraphs, we also deal with much higher value cases, but I would disagree with your implication that it is only in those cases that clients can be genuinely aggrieved. Take for example an RTA client today who it transpires, having been referred to panel solicitors by his LEI insurers, was then signed up to a CFA with success fee and ATE policy with the very same insurers. It seems he was just told "this is the way it is". Is he wrong to feel aggrieved just because the amounts involved are modest? Is that a "manufactured factory claim" that is not worthy of the court's attention? Are his statutory rights under the Act diminished just because some some people are a bit sniffy about RTA claims?

And I think I did answer your point about approval -

"There are, as you point out, rebuttable presumptions under CPR 46.9(3) dealing with client approval, but that approval has to be informed approval.

So your example of charging £3,456.78 per hour being beyond the remit of assessment is correct only if you have told the client that this is an unusually high rate and, as a result, might well not be allowed if it were to be assessed interpartes."

This was the point made by Master Rowley in Breyer Group -v- Prospect Law at paragraph 23, and echoes the decision of the High Court about "informed approval" in Macdougall -v- Boote Edgar Esterkin -

"My further conclusion is that the quality of the approval has to be such as to raise a presumption. In the course of argument I talked of 'informed' approval and even with reflection I adhere to that concept. To rely on the Applicants' approval the solicitor must satisfy me that it was secured following a full and fair exposition of the factors relevant to it so that the Applicants, lay persons as they are, can reasonably be bound by it"

You cannot just take 49.3(a) and (b) in isolation; they are subject to 49.3(c) which is quite clear -

Costs will be presumed.....

(c) to have been unreasonably incurred if –

(i) they are of an unusual nature or amount; and

(ii) the solicitor did not tell the client that as a result the costs might not be recovered from the other party.