Kerry Underwood

COSTS LAWYERS CAN DELEGATE WORK TO STAFF

with 2 comments


The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

Allen v Brethertons LLP [2019] EWHC B3 (Costs) (08 May 2019)

a Master in the Senior Courts Costs Office was considering the assessment of costs of the successful claimant in an application for a final statute bill under the Solicitors Act 1974.

The person with effective conduct of the claimant’s case was a Costs Lawyer regulated by the Costs Lawyer Standards Board, whose guidance states that it authorises and regulates individual Costs Lawyers and not entities or licensed alternative business structures.

Consequently, on the face of it, a Costs Lawyer cannot delegate reserved legal activities such as the exercise of a right of audience or the conduct of litigation.

Here the Costs Lawyer was assisted by unqualified people and the paying party argued that the prohibition on delegation meant that the claimant could not recover costs in relation to work done by anyone other than the qualified Costs Lawyer.

The relevant provisions and definitions are contained in the Legal Services Act 2007 and section 13(1) states that the question of whether a person is entitled to carry on a reserved legal activity “is to be determined solely in accordance with the provisions of this Act.”

Section 12(3) defines legal activity as:

“(a)  an activity which is a reserved legal activity…

(b)  any other activity which consists of one or both of the following–

(i)  the provision of legal advice or assistance in connection with the application of the law or with any form of resolution of legal disputes;

(ii)  the provision of representation in connection with any matter concerning the application of the law or any form of resolution of legal disputes…”

Section 5 provides that a legal dispute includes a dispute as to any matter of fact, the resolution of which is relevant to determining the nature of any person’s legal rights or liabilities.

A person may carry on the activities if authorised, or if exempt by virtue of Schedule 3 to the Act.

Paragraph 16 of Schedule 3 provides that in relation to reserved instrument activities, a person is exempt if, as an individual, she or he carries on the activity at the direction and under the control of a connected person who is entitled to carry on that activity.

Following the decision in

Agassi v Robinson (Inspector of Taxes) (No 2) [2005] EWCA Civ 1507

the court here held that the giving of legal advice, the conduct of correspondence with an opposing party and the performance of administrative support services ancillary to the conduct of litigation, but not amounting to formal steps, constituted legal activity, but not “reserved legal activity” and can therefore be carried out by anyone.

Here, the court found that the work done by others did not, for the most part, constitute reserved activity, and in so far as it did, the relevant persons undertook it as exempt persons under the Legal Services Act 2007.

Any other interpretation would have the effect of rendering the Costs Lawyer’s working life “in practical terms impossible.”

Written by kerryunderwood

May 13, 2019 at 11:05 am

Posted in Uncategorized

2 Responses

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  1. Practitioners interested in this topic may also wish to consider Kynaston v Carroll [2011] EWHC 2179 (QB) at {6} – {8}, also cited in the white book. On an application to appeal it was found that a costs lawyer could delegate the task of appearing in court to somebody under his direct supervision.

    A little known case but one that I recall as it was mine. Thought the reminder might help costs lawyers coming up against unmerited objection.

    Regards all.

    Tony artmstrong

    May 13, 2019 at 11:58 am

    • Tony

      The Kynaston decision is referred to in the judgment in the current case, which can be accessed via the link in the blog.

      Kerry

      kerryunderwood

      May 13, 2019 at 1:57 pm


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