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Lawyers’ Civil Procedure Act duty to correct opponents’ misapprehensions

A judge of the Supreme Court of NSW has reiterated that litigation is not a game, and foreshadowed the possibility of a personal costs order against lawyers for a respondent who took improper advantage of their opponent’s ignorance of a provision in the Corporations Act, 2001. The provision terminates proceedings for winding up in insolvency 6 months after their issue, unless a court otherwise orders.  They took advantage by agreeing to proposed consent orders providing for an interlocutory timetable pursuant to which the proceedings would be brought to a premature end before trial, without pointing that pitfall out to the other side.  Justice Richard White’s comments in
In the matter of Fratelli’s Fresh Pasta Pty Ltd [2011] NSWSC 576 at [18] to [26] follow below.  Note that his Honour expressly drew upon s. 56 of the Civil Procedure Act, 2005 (NSW), which provides:

‘(1) The overriding purpose of this Act and of rules of court, in their application to a civil dispute or civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings.

…

(4) Each of the following persons must not, by their conduct, cause a party to a civil dispute or civil proceedings to be put in breach of a duty identified in subsection (3) or (3A) [to further the overriding purpose and to take reasonable steps to resolve or narrow the issues in dispute]:

(a) any solicitor or barrister representing the party in the dispute or proceedings …

(5) The court may take into account any failure to comply with subsection (3), (3A) or (4) in exercising a discretion with respect to costs.’ Continue reading “Lawyers’ Civil Procedure Act duty to correct opponents’ misapprehensions”

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Victorian Supreme Court takes relaxed approach to conditions for validity of no-win no-fee costs agreements

Legal Services Board v DF [2011] VSC 292 will be of considerable interest to those who draft and work within no-win no-fee retainers. Justice Karin Emerton found that though Victoria’s repealed Legal Practice Act, 1996 implicitly prohibited the charging of uplift fees otherwise than upon a ‘successful outcome’  it was open to parties to provide for the payment of an uplift in circumstances which could not be described, in ordinary parlance, as a ‘successful outcome’, such as where the client terminates the solicitor’s retainer.  Her Honour also found that ‘if you recover any money from your case’ was a sufficient definition of the ‘successful outcome’, finding that objectively construed, what those words meant were ‘if you recover any compensation’, as opposed to costs.  The decision will be of assistance in interpreting the similar provisions under Victoria’s Legal Profession Act, 2004 and the other states’ (South Australia excepted) equivalents.

Continue reading “Victorian Supreme Court takes relaxed approach to conditions for validity of no-win no-fee costs agreements”

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Dr Mark Friston’s ‘Civil Costs’: a Review

Jordans, a Bristol publisher, kindly sent me a copy of Dr Mark Friston’s Civil Costs; Law and Practice.  It was published as a first edition in April 2010 at a cost of ₤75.  A monumental work of over 1200 pages, it competes in England with LexisNexis’s Cook on Costs, published annually. Its scope may be divined from the statement of contents here.  Dr Friston is a practising barrister with a particular interest in class actions who has specifically set out to write a practitioner’s text,  stating the law without unnecessary excursions into what the law used to be, or what it should be.  The relevant legislation is reproduced, and there are precedents up the back, including precedents for the suit for fees, and the defence in such a suit. It is replete with pin-point citation of modern authority.  It is a good book, and one that I am pleased to have in my library. All Australian costs lawyers probably have Dal Pont’s The Law of Costs ($275) and access to Roger Quick and David Garnsworthy’s Quick on Costs ($2,400), but Friston’s text does not appear to be held by the Law Institute Library or the Victorian Supreme Court Library. To have the English law in one’s chambers is to have a competitive advantage for those called on to argue difficult costs cases, or to argue key concepts in Victoria’s Civil Procedure Act, 2010 which have for some time already been a part of the English civil procedure landscape, such as the concept of proportionalilty in the award of costs. Continue reading “Dr Mark Friston’s ‘Civil Costs’: a Review”

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Federal Court says Jarndyce v Jarndyce is to be kept front of mind by Costs Courts

For some reason I have agreed to give a seminar on the ethics of billing by the hour, one of those topics so big that I have until now avoided tinkering around the edges of it.  My distinguished collaborators, who will give separate papers at the 7 September 2011 seminar in Melbourne, will be Costs Judge Jamie Wood and Liz Harris, head honcho at Harris Costs Lawyers.  My researches begin here, today, with a look at a recent decision of Justice John Logan of the Federal Court in Queensland who has a few days ago delivered a leviathan costs judgment (Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 9) [2011] FCA 661) in which he awarded solicitor-client costs against the applicant in respect of failed allegations of misconduct and said:

‘Some of the language employed in [the scale] in respect of particular items is indeed redolent of a 19th century legal office – “engross” and “folio”, for example. This acknowledged, to approach the subject of how much reasonably to allow in respect of legal costs by recalling the works of Charles Dickens may not, with respect, necessarily be a bad thing.’

His Honour then went on to catalogue judicial diatribes against the billable hour, via a reference to Bleak House: Continue reading “Federal Court says Jarndyce v Jarndyce is to be kept front of mind by Costs Courts”

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Qld solicitors referred to Legal Services Commissioner for demanding outrageous sum as condition for handing over file on their wrongful termination of no-win no-fee retainer

Ireland v Trilby Misso [2011] QSC 127 is a sorry tale which did not end well for the solicitors who were found to have repudiated their retainer by terminating without good cause, ordered to hand over their file to Mr Ireland’s new solicitors, ordered to pay costs, and referred to the Legal Services Commissioner.  The decision is interesting because it looks at the consequences of terminating a no-win no-fee retainer and also considers the relevance to a civil dispute of the conduct rules governing ownership of files on a change of solicitor. Continue reading “Qld solicitors referred to Legal Services Commissioner for demanding outrageous sum as condition for handing over file on their wrongful termination of no-win no-fee retainer”

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Problems abound when one spouse’s solicitor conveys matrimonial property by order of the Court

Update, 6 June 2011: A reader has helpfully pointed out that the decision digested below has been overturned by a unanimous Court of Appeal, the principal judgment having been given by Justice McMurdo.  See Legal Services Commissioner v Wright [2010] QCA 321.

Original post: The Family Court likes to order that one spouse’s solicitor act for both spouses in the conveyance of matrimonial property which it orders be sold.  That this may occur exemplifies the principle that it is not enough that clients’ interests conflict for a conflict of duties to proscribe a multiple client retainer; what is necessary is that they conflict materially in relation to the matter which is the subject of the retainer.  But I have acted in three matters where such an order has resulted in problems, and that suggests to me that there are many more such matters which have run into problems.  Generally, the problems arise from the solicitor ignoring in some way the interests of the spouse for whom he or she had previously been acting exclusively, or at least the perception that that is so.

Legal Services Commissioner v Wright [2010] QSC 168 is a variation on the theme.  It arose out of a de facto property adjustment case in Queensland’s District Court.  The Court ordered that the de facto husband’s solicitor ‘will act on [his] behalf in the conveyance of the sale of the property’, which was in the de facto husband’s name.  The de facto husband and wife were then ordered to cooperate in paying out costs of the sale (including the legal fees) and creditors before the balance was to be divided 75% to the de facto wife and 25% to the de facto husband.  The Chief Justice of Queensland wasted little ink in concluding that the wife was neither the solicitor’s client nor a third party payer, and so was not even entitled to an itemised bill when the husband’s solicitor charged over $7,000 for the conveyance, directly diminishing the amount reaching her pocket by three-quarters of $7,000.

Where one spouse agrees on the other spouse’s solicitor conducting a conveyance otherwise than expressly for both of them, this case suggests that they would be well advised either to provide for an obligation to pay the solicitor’s fees of a kind which brings them within the definition of ‘third party payer’, or fix the fee payable for the conveyance, or contract for an entitlement to an itemised bill, and thereafter to be deemed by agreement to be a third party payer. Continue reading “Problems abound when one spouse’s solicitor conveys matrimonial property by order of the Court”