Costs of the lawyer litigant: judgments all over the place

Update, 7 November 2018: the pendulum is certainly swinging in favour of pro se barristers being entitled to scale costs if they win: Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150; Lake v Municipal Association of Victoria (No 2) [2018] VSC 660.

Update, 30 November 2017: The Full Court of the Tasmanian Supreme Court has weighed in, deciding that a practitioner who was admitted but yet to apply for a practising certificate was not a person to whom the Chorley exception applied: QRS v Legal Profession Board of Tasmania [2017] TASFC 13, and that the exception only favours lawyers who held a practising certificate at the time they did the work.

Update, 24 October 2017:  Readers have brought my attention to a couple of developments in relation to the law about the costs awards available to various classes of litigants who represent themselves.  First, in Joint Action Funding Limited v Eichelbaum [2017] NZCA 249 (14 June 2017), the New Zealand Court of Appeal decided that the Chorley exception in favour of lawyers who represent themselves is not available to a barrister who acted for himself.  But as Andrew Beck pointed out in ‘Who Gets Costs? The Plight of the Unrepresented’ [2017] NZLJ 281 (I have a copy if you want one), the Court’s reasoning may affect a broader class of unrepresented persons, and the decision may in time come to be seen as a substantial inroad into the Chorley exception.  Though the New Zealand High Court considered the Australian authorities in some detail, between the NZ case being argued and judgment being delivered, the NSW Court of Appeal delivered what seems to me likely to be a decision on rather similar questions in Coshott [sic!] v Spencer [2017] NSWCA 118 (31 May 2017).

That NSW decision, like Rogers v Roche [2017] QCA 145 (23 June 2017) preserved the status quo in relation to the Chorley exception.  So it may be said that NZ is going in one direction while NSW and Queensland are going in the other.   Regrettably for the development of the law, however, none of the three appellate decisions cites the other.  But what all these decisions remind us is that the answer to the question ‘can the unrepresented lawyer get costs?’ is always a question of statutory interpretation, and subtle differences in the costs powers of different courts can make a big difference.

Original post: Coshott, a keen litigant, suffered an indemnity costs order against her in favour of solicitors, Mr Barry and Mr Board.  They were in partnership at the time relevant to the case pleaded against them, but are now sole practitioners.  Since partners are sued separately rather than under the firm name in NSW, it is not entirely clear to me whether they were sued as partners or not. Perhaps it does not matter.

Mr Barry did the solicitors’ work in defending the proceedings for himself and Mr Board, recording his time on the basis that he was charging $360 per hour, of which Mr Board was to pay him $180 per hour.   In Coshott v Barry [2017] NSWSC 1435 , Fagan J allowed the full rate on the basis that as to $180 in each hour Mr Barry was effectively self-representing and so was entitled, pursuant to the ‘Chorley exception’ to the indemnity principle, to costs calculated by reference to the fiction that he had hired external lawyers at commercial rates, and as to $180 per hour on the basis he was Mr Board’s solicitor and so Mr Board was entitled to costs in the usual way.

I’m not sure there is anything particularly new about this analysis, but thought I would note it so as to illustrate one application of the rule that solicitor litigants are entitled to costs even though they represent themselves, which is easy to state, but not always obvious in its application.  Usually the costs to which they are entitled are scale costs, but this case was a little different because of the indemnity costs order made.

The Court reminded itself of the caution necessary in assessing costs pursuant to the Chorley exception:

‘In making the assessment I will have regard to the decision in Lawrence v Nikolaidis (2003) 57 NSWLR 355; [2003] NSWCA 129. That requires that in assessing the costs of a solicitor who has acted for himself the court must take care not to allow items which would be irrecoverable if the solicitor and the client were separate, such as time which is in reality spent on the function of giving evidence as witness.’

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5 Replies to “Costs of the lawyer litigant: judgments all over the place”

  1. The logic of reasoning ought dovetail with the cases regarding the costs of litigants using in-house lawyers. There are cases that this class of litigants can get costs on scale not related to the salary & overhead expense.

  2. South Australia has recently affirmed the principle applies, and cited Rogers v Roche – Steicke v Connolly & Co [2017] SASC 99.

    1. High Court has recently granted special leave in Coshott v Spencer/Barry [2017] HC Trans 263, so the HC seems keen to tidy this up.

  3. One justification to the “exception” which I have never seen in a judicial analysis, is that lawyers acting for themselves are nevertheless subject to the same professional obligations to the court to which they are subject when acting for another. The reward for so acting is fixed by a scale – so there is no issue in the lawyer having resort to that scale to quantify the costs of the work.

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