‘Law of Costs
Professor Gino Dal Pont, (5th edn), 2021, LexisNexis, pb $460
Everyone thinks they know the law of costs and we look it up too infrequently, but costs lawyers spend their lives mopping up after errors made by litigators, KCs and judges included. Sometimes, a mop up is not possible, and in the realm of solicitor-client costs, lawyers are forced into quiet but devastating settlements by which they give up and disgorge costs to the tune of many hundreds of thousands of dollars at a time, more often than might be imagined.
Clients are let down by otherwise excellent lawyers more often in relation to costs than in any other sphere, both in terms of maximising recoverable party party costs and in terms of some billing practices. Such practices should be an urgent priority of the justice system. Justices John Dixon and Kate McMillan lead the charge in this regard, and all credit to them. Victoria, right now, is not a favourable jurisdiction for lawyers to be lazy in relation to costs. After Bolitho, barristers’ fees are likely to attract more searching scrutiny than before. Now is a good time for lawyers to consider buying a text on legal costs.
Professor Gino Dal Pont’s The Law of Costs was first published 18 years ago in 2003, and so is a mature text and probably the best of his many – a really astonishing achievement which plays an important role in the administration of justice throughout the land. The fifth edition is a comprehensive and easily looked-up treatment of all aspects of costs as between party and party, including the practice of their taxation. The text also deals comprehensively with costs in appeals and criminal proceedings, the burgeoning area of non-party costs orders, and security for costs.
Part 1 (Costs between lawyer and own client) and chapters 26 and 27 on liens over files and the fruits of litigation lien should be read by at least one person within each law firm, and provide the most accessible commentary on these important areas of practice. There is, however, room for expansion of Part 1 in future editions, eg, in relation to reviews from first instance decisions in taxation which plague costs litigation, the inherent jurisdiction to tax costs which is broader and more resilient to statutory incursion in Victoria than is commonly realised, taxation of counsel’s fees, the impact of the Civil Procedure Act 2010, and how in practice courts deal with ascertaining the allowance under the Legal Profession Uniform Law to a lawyer in the case of a void costs agreement (which is where a lot of the action is in Costs Court litigation these days).
Dal Pont’s excellent hallmark is that he writes practical texts useful to practitioners and judges. The work takes the published decisions of courts as its starting point. Because there are comparatively few such decisions in relation to the line by line allowances in taxation hearings proper, a practitioner could not read chapter 17 (Allowances on Costs Quantification Between Party and Party) and walk into such a taxation confidently, for to do so is to enter a world whose lore is known mainly in practice by a small group of costs lawyers and costs consultants which is not to be found in the law reports.
Though the Costs Court has been obliged to give reasons for its decisions in taxations as between lawyer and own client since 1 July 2015 (Legal Profession Uniform Law, s201) there are few decisions following a completed taxation to be found on AustLII or Jade BarNet. This is in part because few taxations governed by the Uniform Law have actually gone to judgment.
The diversity of procedures for assessing costs in Australia, combined with the parochial nature of the tribunals responsible for that task, make writing a text such as this enormously difficult. The adoption by Western Australia this year of the Uniform Law, so that the great majority of Australia’s lawyers are governed by it, is likely to promote a national costs law and allow for Dal Pont’s text to become even more useful in the future.’