Costs recovery in pro bono cases in Victorian state courts: Part 3

I was asked to talk to my colleagues at the Victorian Bar recently in relation to costs recovery in pro bono cases. It is now more certain that costs may be recovered from the other side by victorious litigants who engage their lawyers on the basis of a greater variety of pro bono arrangements. That is as a result of both recent developments in the judge-made law and changes to the Supreme and County Courts’ rules. Over the last few days, I published parts one and two of the paper I distributed. What follows is the third and final part, which considers different kinds of client-favourable costs agreements (some quite esoteric) and analyses their indemnity principle implications. It also provides some thoughts on how to draft costs agreements for work done otherwise than on a purely commercial basis, and how to ensure counsel get paid. Part one is here and part two here

***

Species of client-favourable costs agreements

Options available to lawyers who wish to do work at less than their usual rates for non-commercial reasons include:

(a) not making any arrangements as to fees at all;

(b) charging your usual rates and leaving it to your discretion whether you send out a bill, or whether you forgive some or all bills given in the event that certain outcomes obtain;promising to do the work for free;

(d) doing the work on a no win = reduced fee basis;

(e) doing the work no win = no fee;

(f) doing the work no costs order = no fee;

(g) doing the work on no actual recovery of costs / compensation / costs or compensation = no fee basis. Continue reading “Costs recovery in pro bono cases in Victorian state courts: Part 3”

11 December, 201711 December, 2017

Costs recovery in pro bono cases in Victorian state courts: Part 2

***

Case law

The Court of Appeal declared that the indemnity principle is not offended by a costs agreement which is conditional on the client obtaining a costs order in Mainieri v Cirillo (2014) 47 VR 127. In that case, the successful party’s solicitors’ costs agreement said: Continue reading “Costs recovery in pro bono cases in Victorian state courts: Part 2”

7 December, 20177 December, 2017

Costs recovery in pro bono cases in Victorian state courts: Part 1

The issue

The amendments to Order 63 of the Supreme Court’s rules and of Order 63A of the County Court’s rules are designed to overcome one aspect of the operation of the indemnity principle in costs law.

Simply put, costs are awarded as a partial indemnity to a successful party for that party’s liability to pay their own lawyers and witnesses and for such payments already made.[1] The indemnity principle says that the amount allowed under a costs order may not exceed the total of those liabilities. Put most pithily, the loser’s costs liability cannot be greater than the winner’s fees and disbursements. Continue reading “Costs recovery in pro bono cases in Victorian state courts: Part 1”

20 April, 201720 April, 2017

The Civil Procedure Act’s overarching obligation to keep costs proportionate

The Civil Procedure Act 2010 applies to proceedings in the Magistrates’ Court, County Court, and Supreme Court but not federal courts or VCAT. Its overarching purpose is to

‘facilitate the just, efficient, timely and costs effective resolution of the real issues in dispute’: s. 7. Continue reading “The Civil Procedure Act’s overarching obligation to keep costs proportionate”

29 April, 201429 April, 2014

What does ‘pro bono’ mean? Are ‘semi-pro bono’ costs agreements legally efficacious?

Hidden away in Trkulja v Efron [2014] VSCA 76, at footnote 49, is a little dictum of the Chief Justice and Justice of Appeal Santamaria which explains their Honours’ understanding of the term ‘pro bono’:

‘In current legal practice, the expression ‘pro bono basis’ is understood to refer to the basis where a practitioner offers his or her services on a voluntary basis without any entitlement to or expectation of remuneration.’

Practitioners should, it seems to me, think carefully before describing themselves as acting ‘pro bono’ when their retainers provide for them to be paid out of the proceeds of a costs order made in favour of their client in litigation to be paid by their client’s opponent in the litigation.

There has been uncertainty in relation to the efficacy of a retainer which says ‘I will charge you $300 per hour but will seek to recover it from you only if you obtain an order that the other party pay your costs, and then I will only seek to recover my fees to the extent of the other side’s liability under the costs order’ or any variation of that concept.

The issue was that the indemnity principle requires total party-party costs to be no more than the liability of the person seeking the costs order to their own lawyers for costs. If the liability depends on the making of a costs order, until the order is made, the liability is nil, so that the indemnity principle precludes the making of the order in the first place (so the argument goes). The latest important decision to endorse this reasoning, albeit in dicta, was King v King [2012] QCA 81.

Now if there is a principle which is properly described as ‘flexible’, it is the indemnity principle in costs law and it is a matter of surprise to me that the uncertainty has persisted so long given the obvious desirability from the perspective of access to justice to sanctioning such arrangements.

Happily, the Supreme Court of Queensland recently gave a decision this year which decided as a matter of ratio that an otherwise orthodox hourly rates costs agreement which included the following special condition was efficacious and did not offend against the indemnity principle:

‘No fees will be payable by you unless an order is made by the Supreme Court of Queensland in your favour for the payment of costs and those costs are recovered by us from other parties and any fees charged shall be limited to the amount of costs so recovered.’ Continue reading “What does ‘pro bono’ mean? Are ‘semi-pro bono’ costs agreements legally efficacious?”

17 July, 2011

Lentil as Anything Needs a Lawyer: anyone?

Friends, no doubt many of you have eaten at Lentil as Anything, the several restaurants where the cost of the meal, if anything, is determined by the diner. Their founder, Shanaka Fernando, travelled to Australia from his native Sri Lanka to study law, but — smart enough to get in, and smart enough to get out — quickly forged a different path. He used to be my across the road neighbour and impressed me as a serious and charismatic individual with sufficient eccentricity and joie de vivre to avoid sanctimoniousness. Having written that, I wonder to myself whether what I am trying to say is — relax: there is not an inch of hippy about him. Maybe. Anyway, it’s true: he plays tennis, gets about in a convertible, and is in training to be the first Sri Lankan to climb Mount Everest.

He was awarded the ridiculously named Australia Day Honour ‘Local Hero’ — quite a high award in the pantheon of these things — not so long ago, and tonight was — along with the Dalai Lama — a guest judge on Master Chef. Being on holiday, I uncharacteristically watched, and was reminded of the failed attempt at a live TV joke during the Dalai Lama’s recent Melbourne tour which made its way to Boing Boing, probably the world’s most popular blog (The Dalai Lama goes into a pizza shop and says ‘Make me one with everything’, which is kind of funny even though ‘being at one with everything’ is a Zen and not a Tibetan buddhist concept).

I like that Lentil as Anything is still going strong, and like that it provides hospitality industry experience and a panoply of other support to refugees and other recent arrivals to our shores. (The Dalai Lama must like it too because he invited Shanaka to come onto the show.) And I also like that they make unpredictably good coffee at the Abbotsford Convent, just down the road from me. Their lease is up for renewal by the good folk at the Convent, and Shanaka is looking for a lawyer to have a look at the text of a lease, pro bono. The Public Interest Law Clearing House (PILCH) is unable to provide a referral to a pro bono leasing lawyer because they have a conflict — presumably they have referred the not for profit organisation which runs the Convent to a lawyer over the same negotiation. There is no controversy I am aware of; it’s a simple gig for a lawyer who knows their way around leases. If you can assist, and are such a lawyer, please let me know, and I will pass on your details to Shanaka.

21 May, 2009

Confidentiality (-not) of disciplinary determinations

The Times has an article about a solicitor on the Board of the English legal regulator and former president of the Law Society who, rather embarrassingly, had a conflict of interest determination go against him after a disciplinary investigation. The solicitor acted pro bono for a barrister who was being sued by an Exxon subsidiary. He acted in an appeal from a Hong Kong court to the Privy Council, which succeeded. At the time of the appeal, the solicitor’s firm merged, and one of his new partners did some work for another Exxon subsidiary. The barrister complained later of a conflict of duties. The complaint was made out. Private Eye got a hold of the adjudication and was preparing to make merry with it when the solicitor applied for an injunction to prevent publication on the basis that it was confidential. That application failed, and so did the solicitor’s appeal. It is easy to say ‘bad, bad move’ with the benefit of hindsight, yet it is a difficult conclusion to escape, since none of the judges seem to have thought much of what I also consider to be an odd argument that a disciplinary adjudication was confidential to the complainant, the solicitor, and the Bureau de Spanque. Here is the decision of the English Court of Appeal’s Lord Justice Toulson with whom Lords Justice Sullivan and Hughes agreed: Napier v Pressdram Limited [2009] EWHC 39 (QB).

16 December, 200817 December, 2008

Unrepresented David’s bank obliteration results in judicial call for ‘The Castle’ sequel

I staved off a bank’s applications for summary judgment for possession last year, and maintain the battle. I will not say victory flowed from my argument that the evidence which purported to establish the incorporation of one of Australia’s largest banks was inadmissible, but I did make that argument, and a perfectly valid one it was too, though had it been necessary no doubt it could have been cured by an adjournment. I do not think it endeared me to the Supreme Court. But as this case shows, you can’t assume anything.

Justice Kenneth Crispin is obviously a man with a sense of humour. He retired last year, and his farewell speech is worth a read. The quiet humour, though, is to be found in his Honour’s recitation of the dogged victory of pro se litigants Stanley Stergiou and his wife Ekaterine in Stergiou v Citibank Savings Ltd [2005] ACTCA 15. A Greek migrant, Mr Stergiou was in his 70s at the time of victory. If the story does not warm the cockles of your heart then you are an un-Australian curmudgeon. The judgment of the President of the ACT Court of Appeal began: Continue reading “Unrepresented David’s bank obliteration results in judicial call for ‘The Castle’ sequel”

24 February, 2008

Pro bono in Victoria; McLelland to copy Hulls’s carrot theory

The Age‘s Julie Szego has written a substantial article in The Age about barristers and pro bono in Victoria. It arises out of Fiona McLeod SC volunteering her time to represent the Blue Wedges coalition which is opposing the Port of Melbourne’s channel deepening project. The Victorian Bar’s pro bono scheme, administered by Victoria’s cutting-edge one stop pro bono shop, the Public Interest Law Clearing House gets a mention, but another scheme, devised by the Bar recently, did not. That’s the duty barrister scheme where barristers agree to go to a particular court for a day and take whatever they are assigned for whoever needs them most.

Then The Australian has a story about the new Labor government’s contemplation of copying Victorian Attorney General Rob Hulls’s innovative method for getting the big end of town to do pro bono with alacrity. If Attorney-General Robert McLelland’s policy plan is to get big firms doing pro bono more equally and with more equal conviction than is presently the case, it’s a no brainer. It worked brilliantly in Melbourne. Continue reading “Pro bono in Victoria; McLelland to copy Hulls’s carrot theory”