Mr Justice Ouseley granted a protective costs order (PCO) with a reciprocal cap of £150,000, to be apportioned between the defendant, the Legal Services Board (LSB) and the first interested party, the Bar Standards Board (BSB). The PCO took into account the fact that the Criminal Bar Association (CBA) was indemnifying the action, the CBA’s ability to raise funds from its members, and the possibility of a future pro bono costs order.
The claimants – supported by the CBA and represented pro bono – argued for a much lower costs cap. The CBA has now pledged £40,000, to be raised amongst its membership, the South Eastern Circuit has pledged £30,000; the other Circuits £17,500 each and the smallest Circuit, Wales and Chester, £10,000.
Meanwhile, the LSB has switched its representation from Herbert Smith Freehills LLP (HSF) to Field Fisher Waterhouse LLP. “Our change in advisers,” a spokesman told Counsel, “is about managing our exposure to costs now that the court has granted permission to bring the judicial review.” Repeating that the LSB would “respond to judicial review in line with established procedures” and “make every effort to limit the cost exposure of the legal profession to this action on behalf of the Criminal Bar”, the spokesperson also confirmed that Nigel Giffin QC retains his brief as counsel.
Following a series of Tweets about the regulators’ cost estimates, the BSB issued a clarification notice to address what it described as “inaccuracies and misinformation being expressed by various members of the Criminal Bar, as well as its representative bodies”. It said: “The BSB is an interested party in the proceedings. We are represented by solicitors and leading counsel. Given the nature of the submission and the status of the Claimants, the BSB is likely to be required to play a significant role in assisting the Court with information about the development of QASA. It is therefore appropriate for the BSB to be suitably represented. We anticipate our reasonable legal costs may be in the region of £100,000.
“Comments that the BSB is going to spend £400-500,000 in ‘defending’ QASA are therefore grossly inaccurate. The BSB encourages the CBA or the Claimants to publish the Order issued by the Court in order to provide further clarity on the costs position.”
CBA Chair Nigel Lithman QC said he was “happy to oblige the BSB and set the record straight”. He said the £150,000 cap “was imposed having heard argument that the LSB regard their reasonable legal costs at £400,000 and our very own BSB £100,000, figures to make our members’ eyes water.”
“Having chosen not to take the same course as the SRA or our distinguished legal team by acting pro bono, it would have shown more sensitivity to keep quiet and reflect upon the irreparable damage they have done to the relations between our wonderful profession and themselves,” Lithman added. The CBA has previously accused the BSB of “meanness of spirit” in not agreeing to waive costs in the action.
No hearing date for R (on the application of Lumsdon & Others) v Legal Services Board had been set as Counsel went to press, but the CBA said it is marked to be heard before 17 December. Four barristers have so far registered on the scheme since it opened on 30 September but there was “plenty of time” for others to register, said the BSB.