McIntosh Chambers

When is a solicitor or barrister who is a litigant in person entitled to claim their own fees?

The answer lies in the interpretation of Cachia v Hanes [1994] HCA 14 and the application of what is known as the 'Chorley exception'.

 

Ms McIntosh has filed an Application for Cost Assessment and claims her fees for representing herself on appeal in the Supreme Court of Appeal on two occasions.

 

Ms McIntosh submits the following in respect of Cachia and Chorley:

 

Submissions in relation to the Chorley exception

1. Cachia v Hanes [1994] HCA 14 is law for the proposition that a litigant in person who is not a lawyer/legal practitioner/solicitor/counsel is not entitled to claim for compensation for the loss of time spent in the preparation and conduct of his case.

 

1. There exists an exception recognised in Cachia which is known as the Chorley exception. The exception supports the proposition whereby a practitioner can claim the costs for his/her own time in a case in which that practitioner is a party. Cachia has not been overruled.

 

1. I start by referring to the relevant legislation at 28 March 2008, being the date in which costs orders were made by the Supreme Court of Appeal in Rockcote Enterprises Pty Ltd; Carelli v FS Architects Pty Ltd & Ors [2008] NSWCA 39:

Civil Procedure Act 2005 (NSW)

Pt 7, Section 98 Costs in Proceedings

98 Courts powers as to costs

(cf Act No 52 1970, section 76; SCR Part 52A, rules 5, 6, 7 and 8; Act No 9 1973, section 148B; Act No 11 1970, section 34)

(1) Subject to rules of court and to this or any other Act:

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis [underline mine] or on an indemnity basis.

(6) In this section,
"costs" include:

(b) in the case of an appeal to the court, the costs of the proceedings giving rise to the appeal, and

 

(Note: The Civil Procedure Act 2005 (NSW) applies to all Civil Proceedings in the Supreme Court (CPA s 4 and Schedule 1))

 

Pt 1 Section 3, Definitions

ordinary basis, in relation to the assessment of legal costs that a court has ordered to be paid, means the basis of assessing costs set out in section 364 (1) and (2) of the Legal Profession Act 2004.

 

Legal Profession Act 2004 (NSW)

364 Assessment of costs—costs ordered by court or tribunal

(1) In conducting an assessment of legal costs payable as a result of an order made by a court or tribunal, the costs assessor must consider:

(a) whether or not it was reasonable to carry out the work to which the costs relate, and

(b) whether or not the work was carried out in a reasonable manner, and

(c) what is a fair and reasonable amount of costs for the work concerned.

(2) In considering what is a fair and reasonable amount of legal costs, a costs assessor may have regard to any or all of the following matters:

(a) the skill, labour and responsibility displayed on the part of the Australian legal practitioner or Australian-registered foreign lawyer responsible for the matter,

(b) the complexity, novelty or difficulty of the matter,

(c) the quality of the work done and whether the level of expertise was appropriate to the nature of the work done,

(d) the place where and circumstances in which the legal services were provided,

(e) the time within which the work was required to be done,

(f) the outcome of the matter.

(3) An assessment must be made in accordance with the operation of the rules of the relevant court or tribunal that made the order for costs and any relevant regulations.

(4) If a court or a tribunal has ordered that costs are to be assessed on an indemnity basis, the costs assessor must assess the costs on that basis, having regard to any relevant rules of the court or tribunal and relevant regulations.

 

1. In Cachia, the majority refers to the legislation as it was at that time being the Supreme Court Act 1970 (NSW) and Supreme Court Rules 1970 (NSW) and determines that ‘The list of factors in r67(3) assumes that the costs in the taxing officer’s discretion are for work done by a practitioner or practitioner’s employee’. The Supreme Court Act and Rules provisions which Cachia refers to have been repealed since Cachia.

 

1. The relevant legislation and rules at 28 March 2008 were the Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 (NSW) (UCPR) which refers to the Legal Profession Act 2004 (NSW)(LPA). (The law as stated above were obtained from ‘point-in-time’ resources at www.austlii.edu.au).

 

1. The Court of Appeal did not order indemnity costs in Rockcote therefore the costs were awarded on the ordinary basis. The definition of ordinary basis is found in the CPA and refers to the LPA s 364(1) and (2). These sections of the LPA are couched in similar terms as the repealed Rule 67(1) and 67(2) of the SCRs. The LPA at 364(2)(a) refers to an ‘Australian legal practitioner’ whereas the similar provision in the SCRs referred to ‘solicitor or counsel’. I was admitted as a Lawyer of the Supreme Court of New South Wales on 7 October 2005 meaning that I was at all relevant times an ‘Australian legal practitioner’. The High Court in Cachia said that terms of r67(3) of the SCR were ‘inapplicable to a litigant in person’ (at 9). I think that the LPA s 364(2) is stated in broader terms than its repealed counterpart in the SCR and is not an exhaustive list that must be referred to by the assessor, whereas Rule 67(2) required the assessor to have regard to the matters listed.

 

1. Their Honours in the majority judgment in Cachia refer to London Scottish Benefit Society v Chorley ((6)(1884) 13 QBD 872), where a narrow exception was identified in a case where a solicitor was found to be entitled to the same costs as if he had employed a solicitor. This ‘exception’ (the ‘Chorley exception’) was further emphasised by Bowen LJ by saying ‘Professional skill and labour are recognised and can be measured by law... Professional skill, when it is bestowed, is accordingly allowed for in taxing a bill of costs...’

 

1. The Court in Cachia went on to say that ‘Both the general principle and the exception have been accepted in this Court.’ This was evident in Guss v Veenhuizen (No2) [1976] HCA 57. Gibbs ACJ, Jacobs and Aickin JJ cited with approval the judgments of Brett MR and Bowen LJ in Chorley. (The court noted that the facts in Guss were different).

 

1. The Court noted the exception and did not overrule it. The Court noted that the Rules provided some basis for the award of costs in favour of an Australian legal practitioner. The Court refers to Schedule G which was referred to by the relevant Rules at that time. That Schedule is no longer relevant or referred to in the UCPR.

 

1. The Court in Cachia at 22 says ‘It would be mere pretence to regard the work done by most litigants in person in the preparation and conduct of their cases as the equivalent of work done by qualified legal representatives.’

 

1. At all times I carried out the work in the court of first instance and on appeal I was a ‘qualified legal representative’. The work I undertook on my own case from first instance was complex commercial litigation. I applied my professional skill and labour during working hours at chambers. My fees are quantifiable and are not excessive. The case should have been won at first instance but for the erroneous judgment of Her Honour Judge Ashford.

 

1. It is notable and important that the majority in Cachia interchange the words lawyer, legal practitioner, practitioner, solicitor and Counsel throughout their discussion in obiter. The LPA defines that person as an Australian legal practitioner of which I am one. The emphasis throughout the majority judgment is not so much on the ‘title’ but upon the profession and on ‘professional skill and labour’. Reading the majority judgment is critical. At no time does the majority narrow the Chorley exception to only a solicitor but refer repeatedly to a legal practitioner. Essentially, the varying words all mean the same thing.

 

1. In response to the Respondents suggestion that the exception is so narrow that a person must have a practicing certificate as a solicitor is not supported by Cachia.

 

1. More recent cases on point are Lawrence v Nikolaidis [2003] NSWCA 129 demonstrate the interpretation that the Court of Appeal has taken of Cachia. The majority (Hodgson JA with Beazley JA agreeing) on that appeal on point said:

 

‘Where the self-represented litigant is a solicitor, the solicitor can recover the reasonable costs of doing what is truly professional work in relation to the case.’

1. Again, the emphasis in Lawrence is on ‘truly professional work’ which would apply to a legal practitioner, lawyer, counsel or other such relevant and appropriately qualified person.

 

 

 

The outcome has yet to be determined but could be a matter of public interest.