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Getting Paid: Part 3 - Quick on Costs

Content updates

As a continuation of the ongoing enhancement of Quick on Costs the third and final part of the Remedies for Costs Chapter will be released with Update 95 in May 2018.

The topics in this third part are set out below. In the release they will be considered with reference to applicable legislation and case law:

  1. An Introduction to Assessment
  2. Pre-proceedings Conduct
  3. Proceedings and Defences
  4. Advocates’ Immunity
  5. Wasted Costs Orders.

1. An Introduction to Assessment

Currently both in Australia and in the United Kingdom the process of taxation has been refashioned and renamed assessment. This part introduces the reader to assessment before dealing with proceedings because both in the recovery of solicitor and client costs by a solicitor from a client and in the recovery of costs between parties by one party from another in proceedings assessment is potentially more important and commoner than proceedings.

2. Pre-proceedings Conduct

This topic considers the use of letters of demand and statutory demands for costs and the possibilities of disciplinary misconduct that from a letter of demand.

3. Proceedings and Defences 

After a consideration of the requirements to obtain a default judgment this topic considers the technical defences open to a client if a solicitor fails to comply with the formalities of charging and then other defences. These other defences include set-off, defences based on the solicitor’s retainer and negligence. 

Only a solicitor's negligence furnishes a defence or cross-claim to the solicitor's claim for costs, not work falling short of the standard required of the solicitor as a solicitor. 

The latter category of claim by a client against a solicitor, or a barrister for that matter, may be pursued by professional complaint. However, where the conduct complained of arises in litigation it may be pursued in the court in which it has arisen under what is often described as  an application for a wasted costs order.

4. Advocates’ Immunity

Advocates’ Immunity is an immunity from suit at the instance of the client. It does not therefore prevent a court making a wasted costs order against a legal representative  for conduct found  breaching the legal representative’s duties to the court although account will be taken of the difficulties of advocacy which justify the immunity.

Advocates’ Immunity survives in Australia as a result of decisions of the High Court. From  a consideration of the origins and development of the immunity and of  these decisions it is possible to conclude, as the Chief Justice of Queensland has recently suggested, that  three things are now required to successfully claim  under a restricted immunity namely: that the work claimed to have been negligent must have an effect on the way the case is conducted in court; that there must be a “functional” connection between that work and the judge’s decision in the case; and that the  controversy in the case must have been quelled by the court, as opposed to by agreement of the parties.

5. Wasted Costs Orders

Broadly, wasted costs are costs which a court in proceedings before it either orders against a client’s legal representative or disallows to such a legal representative. The costs will be ordered or disallowed because of the legal representative’s conduct which the court has found to be improper, unreasonable or negligent in breach of the legal representative’s duties to the court.

With the help of an overview of the current wasted costs jurisdiction in the United Kingdom completed by two specialist UK costs lawyers, Mark Friston, Barrister and Liz Love, Costs Lawyer this topic considers the inherent jurisdiction and the multiple statutory schemes for wasted costs overlaying that jurisdiction in Australia which;

  1. have complicated the law on the topic of wasted costs in Australia; and 
  2. mean that it has become uncertain for litigants and legal representatives  to say what that law is.
By arielgalapo

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