A barrister rang me the other day in relation to what he probably thought was a simple question: if a lawyer settles a dispute about legal costs and then sues for specific performance, is it a ‘proceeding to recover legal costs’? No, I said, but I could not find, on my blog, or anywhere else where I store things for later use, authority for the proposition. Now I have come across the authority I had in the back of my mind and have forgotten who asked the question. So here it is, for the whole world to enjoy: Koutsourais & v Metledge & Associates [2004] NSWCA 313. In fact, it is not authority for the proposition I had in my mind, since one judge held in favour of the proposition, one against, and one abstained from deciding the case on that issue. Its investigation of previous cases is nonetheless useful, and it and those cases provide a useful jumping off point for anyone who needs to research the issue. It has been considered subsequently, in cases published on Austlii, in these cases. The ones I have looked at suggest that the proposition is a good one, at least where the character of the settlement agreement is sufficiently removed conceptually from the original indebtedness, but don’t quote me on that tentative conclusion. Anyone know of any Victorian authority on the question?The question of what amounts to a ‘proceeding to recover legal costs’ arises because there are various preconditions to such suits, and such suits are prohibited in certain circumstances. By way of example, s. 3.4.33 of the Legal Profession Act, 2004 says:
‘(1) A law practice must not commence legal proceedings to recover legal costs from a person until at least 65 days after the law practice has given a bill to the person in accordance with sections 3.4.34 and 3.4.35.’
