One might imagine the suit for fees to be the simplest legal claim there is. But there seems to be great confusion about what the elements of the claim are, what defences are available, and the relationship of the suit with a taxation, or the failure to exercise a right of taxation. If anyone has any contributions to the mysteries referred to below, I would be happy to hear them. First of all, it always surprises me that solicitors rarely bother to plead the costs agreement on which they sue. Rather, they use an old form of debt claim by which it is alleged simply that the client is indebted to the solicitor in the sum of $X, particularised by reference to the provision of bills ‘particulars of which have already been provided to [the client]’. There are various provisions which state that a solicitor may not commence proceedings for fees unless certain conditions have first been satisfied, for example, awaiting the statutory period after giving a bill, and after giving a lump sum bill. The way the bill must be given is prescribed in the legislation. There are other provisions that a client need not pay a solicitor’s bill where there has been non-compliance with the costs disclosure regime. I have seen it suggested that compliance with these statutory obligations are elements of the cause of action which must be pleaded. I have also seen it suggested that they are matters which must be raised by a defendant.
A solicitor-client taxation of costs is presumably intended to be different from a suit for fees, but I have many times seen Magistrates in particular turn a suit for fees into a taxation. In some cases, wildly inadmissible expert evidence of a costs consultant’s certificate that ‘an appropriate allowance’ for the work the subject of the fees claimed by the solicitors is $X is admitted. At the other extreme, the entire solicitors’ file has been included in the court book and tendered in evidence. That was what happened in Maurice B Pty Ltd v Burmingham  VSC 20. I initially read Justice Byrne’s comment that he ‘would not undertake at this trial the task of taxing the bill of costs’ as an indication that it was impermissible to turn the suit for fees into a taxation. But apparently not, because at the end of his reasons, his Honour said:
‘164 I have not been required to determine whether any item of work in the bill was in fact not performed, nor whether the amount claimed was proper having regard to the appropriate scale. These are matters which remain to be determined.
165 I will hear counsel further as to the orders which should be made to give effect to these conclusions, as to the further disposition of the remaining questions in this proceeding, and as to costs.’
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