Lawyers who act for themselves have a fee-earner for a client … Breakthrough from the NSW Court of Appeal … Chorley principle extends to barristers … Happily, all brands of lawyers can now charge fees for representing themselves in litigation … Stephen Murray reports courtside
In a majority decision, the court held that because the rationale of the exception is that solicitors’ costs can be quantified, that exception should apply to barristers as well.
Barrister Janet Pentelow had been briefed as counsel by Bell Lawyers in proceedings brought under the Family Provision Act. A dispute about fees was eventually resolved in her favour in the Supreme Court in 2013, with an order for costs in the Local Court and the Supreme Court also made in her favour.
In claiming her costs, she had provision for costs of nearly $45,000 incurred on her own behalf. The costs assessor disallowed the costs on the basis that she had legal representation in both proceedings, and that the Chorley exception did not apply to barristers. On appeal, the Review Panel confirmed this position. An appeal to the District Court in 2016 was also unsuccessful.
Pentelow’s appeal to the Court of Appeal was heard last August, and judgment was ready for delivery in December, but with the High Court granting special leave in Coshott v Spencer to consider whether the Chorley exception should be maintained for solicitors, the Court of Appeal delayed its decision with the consent of the parties. The High Court revoked special leave in Coshott while hearing the appeal in May, concluding that it was not an appropriate vehicle for reconsidering the exception.
The Chorley exception is the rule of practice that self-represented litigants are not entitled to professional costs when acting for themselves in proceedings, except where the litigant is a solicitor.
Confirmed by the High Court in Guss v Veenhuizen in 1976, doubt has since crept in as to the principle behind its application. For instance, the High Court majority in Cachia v Hanes in 1994 thought the exception for solicitors “somewhat anomalous”, with their privileged position a “somewhat dubious” justification for the rule’s existence.
However, as the aborted appeal in Coshott shows, the appropriate vehicle for reconsidering the exception for solicitors has yet to materialise.
In the Court of Appeal, Pentelow argued the work she had undertaken in her own cause was work that could be performed by either a solicitor or a barrister, and that those cases that had not applied Chorley to the situation of barristers had misunderstood its rationale.
Counsel for Bell Lawyers argued that the rationale for the Chorley exception was weak, and noted that assessment of costs had changed significantly since Chorley and Guss, moving away from scales of costs to time costing. It was also argued that the bar rules were an impediment to claiming costs.
In granting Pentelow’s appeal, Acting Chief Justice Margaret Beazley, supported by Robert Macfarlan JA, found there was a significant degree of commonality in the work of barristers and solicitors, particularly in preparing advices and legal documents.
The majority found there was no principled basis to reject the application of Chorley to legal work undertaken by a self-represented litigant who is a barrister.
Beazley said that the rationale of the Chorley exception “is not based on the type of work solicitors undertake, per se. Rather, it is based on the fact that the work undertaken can be quantified”.
Noting the position of the High Court’s plurality in Cachia, Beazley argued that the position had changed with respect to costs assessment and the commonality of work between solicitors and barristers.
The acting CJ was at pains to emphasise that the decision was an application of Chorley to the facts and not an extension of it. Beazley also seems resigned to the question of the application of Chorley to barristers, and indeed the exception itself, ultimately being decided by the High Court:
“… whether the application of the Chorley exception to barristers is a permissible application of the principle is, of course, a matter ultimately for the High Court, as is the continued application of the exception itself.”
In summing up, Beazley said the question will eventually need to be resolved by the High Court or by legislation.
The majority held that the question of whether Pentelow was a self-represented litigant was a question of fact, which was not amenable to judicial review. However, it was found to be a mixture of fact and law as to whether, despite retaining representation, she was entitled to recover costs.
The matter was ordered to be remitted to the District Court, with it intended that the matter be further remitted to the Review Panel or the costs assessor for assessment.
On the question of what costs might be appropriately assessed, Beazley noted the observations of Judge Judith Gibson who, when determining the matter in the District Court, observed that it was difficult to see how a barrister could justify charging for work that was properly characterised as solicitors’ work. Beazley agreed, but to her mind that was an issue for costs assessment.
In dissent, Justice Anthony Meagher, thought the argument about whether the remaining distinction between solicitors and barristers was material to the Chorley exception was a “false issue”.
He concluded that to apply the Chorley exception to barristers would …
“… trench further upon the plain language of the Civil Procedure Act, which reflects the general conception of costs as being awarded by way of indemnity for legal costs actually incurred.”
He said that if the Chorley exception is to survive and inform the awarding of costs it can only do so as an “undesirable anomaly that should not be permitted in any class of case where its use [is] not covered by authority”.