Solicitors were “wrong” to go round costs lawyer acting for former client

Green: Status confirmed

Solicitors have been criticised by a costs judge for refusing to deal with a former client’s costs lawyer in a dispute over their fees.

Master Leonard said Oxfordshire firm Brethertons had failed to show “the same professional courtesy as a solicitor would expect” in such circumstances, and said it may have been a breach of the Solicitors’ Code of Conduct.

In Allen v Brethertons LLP [2018] EWHC B15 (Costs), the substance of which we have reported separately, the former client engaged, which is not a regulated law firm, to look at what he had been charged.

The judge recounted how Kerry-Anne Moore, a costs lawyer employed by, informed the firm in October 2017 that she had been instructed and requested copies of documents from their file. Her letter enclosed a form of authority electronically signed by the claimant.

“[Brethertons] did not accept this as sufficient to allow them to release papers to Ms Moore, indicated that the signature on the form of authority did not match the claimant’s signature on their records, and insisted upon receiving a form of authority direct from the client. The papers were finally sent to Ms Moore on 19 December 2017.”

Then, in February 2018, Brethertons wrote directly to the client about the matter.

In a footnote to his ruling, Master Leonard pointed out that, as a costs lawyer regulated by the Costs Lawyer Standards Board (CLSB), Ms Moore had the right, in cases such as this, to conduct litigation and to exercise a right of audience.

“In correspondence with the defendant, she identified herself as such from an early stage and from the outset requested that the defendant communicate with, rather than with the claimant directly.

“That seems to me to be consistent with the current provisions of the Solicitors’ Code of Conduct (at chapter 11), which indicate that a solicitor should not contact a party directly where that solicitor is aware that that party has instructed ‘a lawyer’, defined in the glossary to the Code of Conduct to include ‘a profession whose members are authorised to carry on legal activities by an approved regulator other than the SRA’.”

Master Leonard said that while Brethertons may have had some initial concerns about its authority to release the papers, by the time of the February 2018 letter, there could have been “no mistake” about the claimant’s wishes or Ms Moore’s professional status, which it could have easily checked on the CLSB website.

He concluded: “Whether the defendant has complied with the code of conduct is not a matter for me, but I would offer the view that Ms Moore, when acting as a costs lawyer with a right to conduct litigation, is at the least entitled to expect from the defendant the same professional courtesy as a solicitor would expect. It does not seem to me that she has received it.”

Claire Green, who takes over as chair of the Association of Costs Lawyers next year, said: “It is vastly rewarding to us, as a profession, to have such clear and unequivocal confirmation of our status from such an eminent source.

“Many members of our association worked very hard to secure independent rights of audience and we expect our solicitor colleagues to show us the same professional respect that we show them. Thank you, Master Leonard.”

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