The Costs Lawyer Standards Board (CLSB) has told the oversight regulator that four training companies and a university have shown an interest in delivering the Costs Lawyers Competence Assessment (CLCA), should it be approved.
It also said it was showing leadership in pressing ahead with its plan for the new training regime for the profession.
It has now submitted the detail of the CLCA for approval by the Legal Services Board, which has until 23 February to make a decision, although this deadline can be extended by a further 62 days.
The application said the CLSB has contracted with a legal education consultant to project manage discussions with potential providers and advise on the drafting of the CLCA handbook.
“Through her work, she has secured the interest of four training companies and a university. Their proposals cannot however be progressed until such time as the CLCA has been approved. It will be part of her remit to continue as the point of contact on progressing their proposals.”
Due to the numbers involved, it is intended that there will be only one assessment provider.
The application declared: “The CLSB believes that a means of entry system which focuses on the outcomes to be achieved rather than structures and processes will have a positive impact on the quality of the costs law services provided, and will increase the number of qualified and regulated costs law practitioners.”
There will be a four-point threshold standard of the knowledge and skills that a person will have on ‘day one’ of their authorised practice as a Costs Lawyer. Under this, a Costs Lawyer will:
- Always perform to an acceptable (satisfactory) standard which is fit for purpose though not necessarily outstanding or perfect;
- Always achieve a standard of service that is appropriate to the purpose for which they have been instructed;
- Be able to deal with straightforward or uncomplicated or familiar work unaided; and
- Ask for support when it is needed in order to complete complex or unfamiliar work.
To get to that point, students will need to pass four assessments and undergo one day’s training, although how the knowledge is acquired will not be proscribed. There will be certain exemptions available for those with other legal qualifications.
The five elements of the training would be:
Part 1: 1 x multiple choice test on legal knowledge covering the legal system of England and Wales, the law of contract and the law of tort.
Part 2: 1 x multiple choice test on legal knowledge covering ethics, professional conduct and regulation, the Civil Procedure Rules, legal costs, funding (legal aid) and funding (other)
Part 3: 1 x practical test on legal drafting, covering the drafting of pleading and procedural documents
Part 4: 1 x 1-day training course oral advocacy
Part 5: Not less than 24 months in legal practice, assessed by way of sign off. This will require work-based exposure to clients, managing client expectations and ethical problems in practice.
In a pointed rebuttal to opponents, the CLSB application said it was “human nature to resist change for reasons such as uncertainty, perceived loss of control and the simple fact that people find comfort in the familiar”, and quoted a comment from the Harvard Business Review that “leadership is about change… resistance to change manifests itself in many ways, from foot-dragging and inertia to petty sabotage to outright rebellions”.
This meant that it ignored any “simple knee jerk ‘no’ reaction” received in the three consultations it carried out, but considered comments or objections where they were explained.
“As a result of this process, the proposal has changed significantly from where it first started in February 2017, evidencing that the CLSB has listened and has made change where considered appropriate.”
At the same time, the application said the regulator had discounted the results of the second consultation held last summer, in which the majority of respondents opposed the CLCA plan.
It said: “The CLSB was of the view this consultation outcome was skewed and cannot be relied upon. ACL Training, without approval of the CLSB, had suggested a two-year prescriptive qualification in a newsletter to all ACL members on 7 June 2018, two weeks before this CLSB consultation closed. This indicated a choice, which confused.
“The CLSB had communicated it was working on an outcomes-focused means of entry, moving away from the historical prescriptive education model means of entry.”
The CLSB went on to reject the opposition to its plan that the ACL outlined last November.
Though the ACL said its response was focused on maintaining and furthering the status and standards of Costs Lawyers, the CLSB said that this was its role.
It said the ACL had not provided any evidence to prove that its plan lowered the standards expected of Costs Lawyers at the point of entry: “There is no evidence that a change to an outcomes-based qualification (rather than process driven qualification) bears an inherent risk of lowering the standards expected.
“An outcomes-based approach has benefits e.g. opening doors on new ways of training and recognising experiential learning, encouraging more candidates and greater diversity.”
There was, the CLSB continued in response to another objection, no need to specify a learning process for would-be Costs Lawyers under an outcomes-based approach. They will have to complete two years of work experience, however.
“The CLCA is intended to be a robust and consistent assessment mechanism, removing barriers to entry,” the CLSB said. “It would serve to strengthen the profession, and it is hoped that in time there will be more regulated Costs Lawyers than unregulated law costs draftsmen/costs draftsmen, not the other way around.
“The flexibility of approach to achieving skills and knowledge will open the qualification up to a broader section of society, who can achieve the CLCA while working to support themselves.”