Onus of proof in costs disputes between lawyers and clients

In Nicholson v B&S [2000] VLPT 28, the Legal Profession Tribunal’s Registrar Howell, considered three questions about the burden of proof:

1. Where there is a dispute about the amount of legal costs, must the client prove that the costs were too great, or must the lawyer prove that the costs were just right?
2. Where there is an application to set aside a costs agreement, must the client prove that there was a costs agreement as a starting point in the case, or must the lawyer?
3. If a client alleges, as a reason why a costs agreement should be set aside pursuant to s. 103 of the Legal Practice Act, 1996, that the lawyer engaged in misconduct or unsatisfactory conduct, does she have to prove the allegation according to the Briginshaw standard of proof or is it sufficient to prove it on the balance of probabilites as more ordinarily understood?

The second one is obvious, an issue thrown up only by an out of left field submission by an unrepresented litigant. The answer is that the client must prove the existence of a costs agreement before an order may be made at her application for it to be set aside. The answer to the third is simple: the Briginshaw standard described in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 @ 362, which says, in its application to disciplinary proceedings —

The civil burden of proof — on the balance of probabilities — means different things in different cases. If you want to make out a case of serious wrongdoing, like misconduct, you’d better do a good job of convincing the Court.

The first is a little less obvious. Here is Registrar Howell’s take on the issue:

“Legal practitioners commonly carry out work in the absence of clients. A legal practitioner should know whether he or she has perused certain documents, but the client usually is without that knowledge. Likewise, a legal practitioner will have knowledge of the duration of an attendance, but it may be extremely difficult, if not impossible, for a client to check the duration of an attendance claimed in a bill of costs. Similarly, time spent carrying out research into the law, or the need for the research, often is not within the knowledge or understanding of the client.

Considerations of this kind have led the Tribunal to require legal practitioners, if challenged, to prove that costs claimed in a bill are appropriate. In almost all cases, proof is not difficult. Brief evidence commonly is given by legal practitioners to the effect that the work set out in the bill was performed, that the disbursements were incurred, and that the costs have been calculated in accordance with a costs agreement or a particular scale of costs. The evidence frequently is confirmed by file notes and other documents, and is readily accepted.

However, if a practitioner has no recollection of carrying out the work referred to in a bill, or there is an absence of file notes, or an absence of correspondence and other documents which the Tribunal would expect to find upon the file, at least some of the items referred to in the bill are likely to be rejected. After all, a legal practitioner has a duty to keep proper records on behalf of his or her client, and should not benefit from any unexplained failure to keep proper records.”