Roger Mallalieu, a well-known costs counsel at 4 New Square, said the right was conferred upon costs lawyers by statute to conduct all costs proceedings within the limits of their statutory powers, regardless of the circumstances in which they are retained or employed.
The ACL said the challenges have arisen where costs lawyers are working in organisations that are not themselves regulated and so not authorised to conduct litigation or provide advocacy – mainly because the Costs Lawyer Standards Board does not yet have a scheme of entity regulation in place.
However, Mr Mallalieu said the Legal Services Act 2007 specifically exempts costs lawyers from having to work in authorised bodies until entity regulation is introduced. The Costs Lawyer Standards Board is currently consulting on introducing a scheme of entity regulation next year.
In order to ensure their position is as robust as possible, Mr Mallalieu advised that costs lawyers should have systems in place to ensure that any non-authorised persons they work with are not engaging in reserved activities.
In relation to the right to conduct litigation specifically, the advice said that costs lawyers are entitled to use unregulated persons to assist them with tasks such as drafting, correspondence, secretarial services, general advice and assistance, without fearing that their litigation rights could be successfully challenged. What amounts to the conduct of litigation is likely to be narrowly construed, he said.
Mr Mallalieu acknowledged, however, that until entity regulation is introduced, challenges could continue and judges may have concerns until the position is properly explained to them.
ACL chairman Sue Nash said: “We decided to take advice after several malevolent challenges to costs lawyers’ right to appear in court. These challenges go to the very heart of our raison d’etre.
“We are keen to hear from any costs lawyers who have, or are currently experiencing, any challenges to their audience rights. If appropriate, the Association would consider being joined as an interested party to the relevant proceedings. It is important that a clear legal precedent is established to prevent further unwanted satellite litigation of this kind.”