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.

One gets the impression that costs is a more highly developed area of law in England than here.  For example, after the event insurance insurance policies complement litigation funding.  ATE policies insure against the risk of adverse costs orders in a particular piece of litigation, being taken out after the event prompting the litigation.  The premiums for such policies are allowed as party-party costs, though all that and more is about to change if a bill to implement the Jackson report, recently introduced into parliament, is enacted.  The Woolf Report gave rise to the Civil Procedure Rules (CPR), which are substantially different from the statutes and rules governing procedure and costs in Australia.  On the other hand, there are archaic aspects of legal practice reflected in the book: most barristers in England still do not enter into contractual relations, though they are entitled to, preferring to pretend that their fees are honoraria.  That system is policed by barristers reporting non-paying solicitors to the Bar Council who then publish their names to all barristers who are then ethically prohibited from extending credit to those solicitors — that is, the solicitors must insist on payment in advance from such delinquents.

Australian readers will benefit from the book in several ways, though it could not be recommended as a first text on costs in any Australian lawyer’s library:

  • many areas of law are sufficiently similar (e.g. retaining liens and particular or ‘fruits of litigation’ liens, the indemnity principle, and the nitty gritty of allowances on party party taxations) that reference to the English law will be useful;
  • construction of Australian statutes may be aided by reference to how similar problems have been worked out in England, for example in the field of conditional costs agreements;  and, perhaps most significantly
  • there is a reservoir of authority in English costs law on the concept of costs proportionality which looms large in legislative reformers’ minds these days, and is already a feature of Victoria’s Civil Procedure Act, 2010.

See also:

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