Newsletter – October 2020

From the CEO

Recent events have caused us, as a nation, to think differently about access to justice. Court closures, delays and new ways of working have made life uncertain for many lawyers and their clients. Technological solutions create opportunities as well as risks. And unregulated providers of legal services step in to fill gaps and meet client needs. The question of what it means to be a regulated lawyer – to be held to higher professional standards than our peers – has never been more significant. All eyes are on the future of legal regulation as we head toward 2021.

Earlier this year, Professor Stephen Mayson published his final report on legal services regulation. While recommending wholesale reform to the regulatory landscape, he accepted that this was unlikely in the short term, and felt that immediate smaller-scale changes were both necessary and possible. His report highlighted a risk of significant detriment from unregulated persons advising on costs issues without having the specialist, up-to-date knowledge and experience of an authorised Costs Lawyer. He also noted the risks from solicitors and barristers “dabbling” in the complex and specialised area of costs. He concluded that only authorised experts should conduct costs litigation.

Also in 2020, the Competition and Markets Authority returned to its legal services market study, originally conducted in 2016. In September the CMA issued a call for inputs, which will be used to assess whether sufficient progress has been made in implementing the market study’s recommendations. The CMA will consider Professor Mayson’s conclusions, including whether and how the growing unregulated sector should be brought into the regulatory tent, including in relation to costs work.

At the same time, the Legal Services Board has been developing a strategy for the legal services market, looking at the structure and scope of regulation and its ability to respond to future challenges. As part of this, the LSB will review the list of legal services that require regulatory authorisation: the so-called “reserved legal activities” list. As you know, conducting litigation and exercising a right of audience are on that list (and are activities that Costs Lawyers can carry out). Advising on costs is not currently on the list. Given Professor Mayson’s conclusions, we believe it should be.

These events create a unique opportunity for growth and change that could bring significant benefits to Costs Lawyers, their clients and the public. As always, we continue to engage and influence, to achieve the best possible outcomes in our part of the sector. If you have evidence or examples from your own practice that could help us do that, please contact us and share your stories.

Kate Wellington

CEO

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