The Chair of the LSRA Task Force, Paul Keane, has published a guidance note on the updated suite of Section 150 precedents.
It is nearly two years since the commencement, in October 2019, of the new legal costs rules under the Legal Services Regulation Act 2015. This legislation did away with our old friend, the section 68 letter, and introduced a much more onerous regime.
Well in advance of the commencement of the new regime, the Law Society’s LSRA Task Force had prepared guidance and precedent draft notices to assist practitioners, which were made available on the Society’s website.
Based on the experience of working with the existing materials and feedback from the profession, the Task Force decided that it was timely to prepare a revised and expanded set of materials for the profession. We have set out to redraft both the guidance and precedent notices whilst respecting the requirements of the 2015 Act.
Section 150 (1) of the 2015 Act requires that s.150 notices are "…written in clear language that is likely to be easily understood by the client…”. With this in mind the Task Force has, in certain cases, avoided the words and phrases used by the statute and instead applied clear language that is likely to be understood in compliance with this requirement. For example, instead of using the phrase “not reasonably practicable”, the draft notices contain the word “feasible”. Rather than using the word “incurred” in the context of costs, the phrase “costs that apply in this matter” has been used in the draft notices.
The suite uses as its starting point a notice for a general non-litigation matter. In addition to fulfilling the requirements of the Act, text dealing with important practical issues such as electronic signatures and service are provided. The suite notes that section 216 of the 2015 Act requires that notices are to be provided to clients by way of personal service, ordinary post or registered post. Thus, there is uncertainty as to the status of the service of these notices by electronic means. Additional clauses are offered that may be of use for a range of practice areas.
For litigation, there are templates for PIAB, Post - PIAB, and general litigation. The regime imposes additional requirements in litigation cases. One of these is to deal with the costs associated with each stage of the case. This requirement has caused the profession particular difficulty. In order to assist, we have set out extensive guidance on the outlines of the stages in various types of litigation. These are described in both compact and long-form. It is a matter of individual choice which style is adopted.
Unfortunately, the complexity of the statute restricts the level of simplicity that one would wish to bring to such a suite. Each of the draft notices has a number of alternatives and footnotes designed to assist practitioners to tailor the draft notices to their particular needs.
It is not possible to prepare a suite of documents that can be cut and pasted without consideration of the individual circumstances of the practitioner and the matter involved.
The relative simplicity of the old s 68 requirements are now a thing of the past. We have no choice but to address the challenges and variables specified by the new legislation. It is really important that practitioners familiarise themselves with the relevant provisions of the 2015 Act.
We hope that this material will assist colleagues in addressing those challenges and act as a rich resource in complying with the Act. The Task Force would welcome feedback, and suggestions for improvement of the suite. The suite will evolve as the profession uses it and more experience is gained of how the new regime will operate in practice.
The preparation of a suite of this nature is extremely challenging and time consuming. I would like to thank Noel Guiden, legal costs accountant, Elizabeth Fitzgerald, solicitor, Simon Treanor, secretary, the members of the Task Force and the specialist committees in the Society for their invaluable input into this project.