Costs

This page contains a variety of resources relating to costs between solicitor and client: disclosure, costs agreements, billing, the court assessment process, practice management and profitability issues, prescribed interest rates for unpaid costs, securing costs, overcharging, disciplinary cases, charging disbursements, personal injury costs and the 50% rule in speculative personal injury matters, criminal law costs, family law matters, barristers’ fees.
 
Legislation
 
Legal Profession Act 2007 – see Part 3.4 “Costs Disclosure and Assessment”. 
(The relevant transitional provisions are in Part 9.3, Division 3 (sections 732 to 739) – as to which see August 2007 Proctor article below).
 
Legal Profession Regulation 2007 – see Part 3.4 “Costs Disclosure and Assessment”.
 
Uniform Civil Procedure Rules 1999 – see Chapter 17A “Costs”. This relates both to party party costs and solicitor client costs.
 
QLS Guides and Guidelines
 
The QLS Costs Guide is a practical, voluntary guide for use by members in complying with the requirements of the Queensland costs regime in Part 3.4 of the Legal Profession Act 2007 (LPA 07). The Guide provides a defensible, dependable and ethically sound guide on costs.
 
This guide helps solicitors look beyond the costs requirements of the Legal Profession Act and improve their practices’ approach to the management of costs.
 
 
 
See 3. Costs scales.
 
   
Proctor Articles

Appeal decision to impact billing practices by Kylie Downes, December 2012 p.6

Challen v Golder Associates Pty Ltd [2012] QCA 307 has significant implications for solicitors regarding itemisation and assessment of bills.

 

Practice and Procedure Case Note on Branson v Tucker [2012] NSWCA 310 by Kylie Downes, December 2012 pp.38-39. Costs – barrister claiming amount in bill of costs rendered to solicitors – time limit on application.

Practice and Procedure Case Note on Julstar Pty Ltd v Lynch Morgan Lawyers [2012] QDC 272 by Sheryl Jackson and Paul Garrett, November 2012 pp.36-37.
Open for inspection? In costs assessment, a lien for unpaid fees may not be enough to prevent an ‘inspection’ of the relevant files if it serves the interests of justice.
UCPR r743A – application for assessment of costs under the LPA – whether applicant entitled to inspect solicitor’s files where lien claimed – scope of assessment – whether applicant must specify grounds – relevance of discretionary factors – order for disclosure under UCPR r223.

Practice and Procedure Case Note on Paroz v Clifford Gouldson Lawyers [2012] QDC 151 by Sheryl Jackson and Roger Quick, October 2012 pp.42-44.
This case offers practitioners an informative judicial view of some key concerns on costs disclosure and assessment.  

Practice and Procedure Case Note on Southwell v Jackson [2012] QDC 65 by Sheryl Jackson, August 2012 pp.42-43.

Take care with ‘care and consideration’. And keep an eye on fees for reasons.

Provisions of the Uniform Civil Procedure Rules relating to costs assessment have received judicial consideration, providing some important lessons for practitioners.

 

Does it add up?  Charging interest on unpaid legal costs.  August 2012 pp.20-21.

 

Reserving our rights.  QLS advocates on itemised billing guide.  July 2012 pp.24-25.

 

On account. Assessment of costs under the Legal Profession Act 2007 by Kylie Downes SC and Carolyn Conway, July 2012 pp.34-36.

Law firms commonly issue periodic invoices. When these are issued over the course of extended litigation, practitioners should note that clients may seek assessment of all invoices issued during the litigation.

 

Practice and Procedure Case Note on King v King [2012] QCA 81 by Sheryl Jackson, June 2012 pp.44-45.

Pro bono – but what about costs? Even when acting pro bono, the possible recovery of costs must be considered at the outset.

Practice and Procedure Case Note on Golder Associates Pty Ltd v Challen [2012] QDC 11 by Sheryl Jackson and Roger Quick, May 2012 pp.38-39.

This case highlights the needs for all solicitors to ensure that their practices maintain a high quality approach to costs management. 

 

Practice and Procedure Case Note on Turner v Mitchells Solicitors [2011] QDC 61 by Sheryl Jackson, September 2011 pp.46-47.

The District Court considers whether an application for assessment of costs under an interim bill at the time of a final bill is subject to the usual 12-month restriction.

And see this CLE paper.

 

A hard-hatted approach to billing by Roger Quick, August 2011 pp.34-36.

Building smarts in estimating, planning and budgeting.

 

Practice and Procedure Case Note on Clayton Utz Lawyers v P&W Enterprises Pty Ltd [2011] QDC 5 by Sheryl Jackson, June 2011 pp.46-47. And see the April 2011 Proctor article about this case and the April 2011 Hearsay article and this CLE paper.

 

Charting a course through client costs agreements by Lance Rundle, May 2011 pp.34-35.

  

Decision highlights fee narrations by QLS Litigation Rules Committee, April 2011 p.32.

This article relates to Clayton Utz Lawyers v P&W Enterprises Pty Ltd  [2011] QDC 5. And see further the Practice and Procedure case note in Proctor June 2011 (above) and this CLE paper.

 

Practice and Procedure Case Note on QCoal Pty Ltd v Cliffs Australia Coal [2010] QSC 479 by Sheryl Jackson, April 2011 pp.44-45.

A recent QSC case demonstrates a number of issues that could deprive a successful party of its right to recover costs through a cost agreement.

 

Guidelines for Litigation Loans February 2011 p.13.

 

Practice and Procedure Case Note on Legal Services Commissioner v Wright [2010] QCA 321 by Sheryl Jackson, February 2011 pp.52-53.

A recent Court of Appeal case examines the meaning of ‘third party payer’ in terms of Part 3.4 of the Legal Profession Act 2007.

 

Fair Trade? Why we need to rethink time billing by Brian Bartley, September 2010, p.12.

The chair of the QLS Ethics Committee asks whether we should be more concerned with abuses of time billing than time billing itself.

 

Practice and Procedure Case Notes on Legal Services Commissioner v Wright [2010] QSC 168 and Amos v Ian K Fry & Company [2010] QCA 131 by Sheryl Jackson, August 2010 pp.42-43.

These decisions consider some of the costs provisions of the Legal Profession Act 2007 including the definition of ‘third party payer’ in s.301. (Note this LSC v Wright decision has been appealed and there is a Practice and Procedure article in Proctor February 2011 commenting on both these cases (see above)).

 

New consumer credit protection regime: Solicitors beware! by Wei-Loong Chen and Elise Whalan, March 2010 pp.35-36.

With new credit laws applying to retainer arrangements, practitioners need to proceed with caution, as a Victorian case illustrates – Brott v Shtrambandt [2009] VSC 467.

 

ILPs: Will the price be right? Applying sections 53C and 76AZF of the Trade Practices Act 1974 (Cth) to incorporated legal practices by Maree Westbrook, March 2010 pp.19-22.

(The legislation referred to in this article has been superseded. Now see the Legal Services Commission Regulatory Guide 2-2012 The Application of the Australian Consumer Law to Lawyers (March 2012) in particular paragraph 4.2 Component Pricing).

 

Fee estimates and cost management by Robert Gallagher, February 2010 pp.39-40.

Estimating and agreeing fees remains a contentious issue for many practices. Robert Gallagher offers a helpful perspective.

 

Practice and Procedure Case Note on John Kallinicos Accountants Pty Ltd v Dundredan Pty Ltd [2009] QDC 141 by Sheryl Jackson, December 2009 p.51.

Request for production of documents – UCPR r 222 – manner of compliance – whether requesting party must pay copying costs.

On a similar note see Provide it! by Neil Watt, March 2008 p.42 about Belela P/L v Menzies Excavation P/L [2004] QSC 478 a case which relates to UCPR r 214(1).

 

Reimbursements and GST. Will you be out of pocket? by Peter Allen and Marc Johnston, November 2009 pp.15-16.

GST payments on disbursements remain somewhat confusing. Peter Allen and Marc Johnston offer a guide to current practice.

 

Practice and Procedure Case Note on Heartwood v Redchip Lawyers [2009] QDC 145 by Sheryl Jackson, October 2009 pp.53-54.

Disclosure obligations on ex parte application for freezing order – duty of practitioners to the court – failure to comply with duty – serious dereliction of duty to court – supplemental order for costs against solicitors personally.

 

What steps can lawyers take to protect work-in-progress and fees paid being ‘clawed back’ by a liquidator or trustee in bankruptcy? by Paul Agnew, September 2009 pp.45-46.

Lawyers can consider a number of options to protect payment for their services in cases involving potential liquidation or bankruptcy. In this article, Paul Agnew examines two possibilities – taking security and retainers for defined future work.

 

No client agreement? What scale? by Stephen Hartwell, May 2009 pp.15-16.

Although there have been recent court decisions on legal costs in the absence of a costs agreement, there are still a number of grey areas, as Stephen Hartwell explains.

 

Practice and Procedure Case Note on Boyce v McIntyre [2008] NSWSC 1218 by Sheryl Jackson, April 2009 pp.50-52.

Legal Profession Act 2004 (NSW) – costs agreement between law practice and client – whether binding on non-associated third-party payer – GST implications when client entitled to input tax credit.

This case relates to costs assessments and the rights of non-associated third party payers such as lessees and mortgagors. Although this case deals with the NSW costs provisions the Queensland provisions are similar. (Note that after publication of this article this decision was appealed and the Court of Appeal confirmed the original decision except in relation to the GST point - Boyce v McIntyre [2009] NSWCA 185).

And see this CLE paper.

 

Time costing – the ‘Prius’ Model by David Topp, October 2008 pp.47-48.

As the time costing debate continues, a hybrid “Prius” model may be the best way to go.

 

In Defence of Time Billing by Graeme McFadyen, August 2008 pp.49-50.

They say time is money, but in legal offices debate continues on what makes the best billing strategy.

 

All about Costs Assessment ’08 by Paul Garrett and Tony Deane, April 2008 pp.23-28.

This detailed article explains the amendments to Chapter 17A of the Uniform Civil Procedure Rules which from 10 December 2007 created a new regime for costs assessments, both for costs payable between parties and for costs payable under the Legal Profession Act 2007 between client and solicitor.

 

A quick guide to the new costs assessment regime February 2008 p.14.

 

Legal Profession Act 2007…The new legal costs provisions – what you need to know! by Peter Carne, August 2007 pp.9-10.

This article includes details of the transitional provisions.

 

Time to re-think the hourly fee? by Giles Watson, April 2007 pp.17-18.

Developments in law firm management suggest that it may be time to re-think our reliance on the basic economic unit of law firm profitability.

 

Solicitors’ professional responsibilities to their clients. The Michael Baker disciplinary decision June 2006 pp.43-46.

 
Department of Justice & Attorney-General
 
See Legal Profession Act 2007 s 308(5). Note that the contents of this form are incorporated in paragraph 1 of the suggested Disclosure Notice in the QLS Costs Guide. Note also that this form only covers some of the matters required to be disclosed at the start of a matter – for further details see the QLS Costs Guide.
 
See Legal Profession Act 2007 s 331(3). This is the notice to go on the bill. Note that there is a preferable version of this form to be found in the final few pages of the QLS Costs Guide (due to drafting omissions in the official form).
 
QLS/LSC Fact Sheets
 
Legal costs — your right to know (version 3 – January 2011).
 
Your right to challenge legal costs (version 6 – January 2011).
 
Queensland Courts Website
 
This linked page includes the following details of the Queensland courts’ assessment process for solicitor client costs (which is by application by the client or by the solicitor to the court having the relevant monetary jurisdiction):
·       Register of Approved Costs Assessors (including details of their fees)
·       Common questions
·       Fees
 
Legal Services Commission

 

Ten questions to ask your lawyer about costs

 

Headline Issues - Legal Costs

 

Counting the costs - a paper presented at the National Costs Lawyers Conference, Melbourne, 15 February 2013. Includes the Commissioner's latest views on care and consideration, cancellation fees, the Australian Consumer Law as it applies to lawyers, itemised bills and lump sum costs agreements.

 

Lump Sum Costs Agreements - Consultation Draft

Draft Regulatory Guide released 19 November 2012. 

 

Regulatory Guide 6: Itemised Bills

This guide deals with many aspects of itemised bills including entitlement to an itemised bill, the content of an itemised bill and the amount of an itemised bill (including the validity of  'reservation clauses' i.e. reservation of a right to substitute a bill for a higher amount than the original lump sum bill).  See also the accompanying Explanatory Notes and the July 2012 Proctor Article Reserving our rights.

 

Regulatory Guide 7: The Application of the Australian Consumer Law to Lawyers

This guide deals with various issues relating to costs including unfair terms in costs agreements and the time limit for providing an itemised bill.

 

Draft Regulatory Guide: Billing Practices - Key Principles

Released 9 March 2012. Comments closed 27 April 2012.

 

'No win-no fee' costs agreements - information for consumers (December 2012).

 

The pressures of billable hours: lessons from a survey of billing practices inside law firms by Christine Parker and David Ruschena (March 2011).

 

At what cost, costs? by John Briton, Legal Services Commissioner (delivered at QLS Symposium March 2011).

 

Wounding the bull: costs in a disciplinary context (March 2009).

Charging “excessive costs in connection with the practice of law” and other issues. By David Edwards, Principal Legal Officer.

 

Regulatory Guide 3: Charging Fees in Speculative Personal Injury Matters

(For further related resources see the ‘Personal Injuries’ section below).

 

Regulatory Guide 1: Charging Outlays and Disbursements

 

LSC and Griffith Law School Symposia
 
 
On Costs (May 2011).
This symposium was a consultation exercise for the first two (itemised bills and cancellation fees) in what is intended to be a series of LSC "regulatory guides".
 
This symposium dealt with billing practices, including charging excessive costs and the role of management systems in ethical best practice billing.
 
This symposium focused on billing practices for charging outlays and issues surrounding litigation lending and the 50/50 rule in the context of personal injuries proceedings.
 
Other Papers, Articles and Guides
 
Update on Assessment of Costs by Paul Garrett (May 2011)
QLS CLE paper discussing various aspects of billing and assessment and the cases Clayton Utz v P & W Enterprises, Turner v Mitchells Solicitors, Boyce v McIntyre and Cosmetic Surgery Advisory Centre v Hawthorn Cuppaidge & Badgery.
 
Managing Costs and Billing Within Your Practice by Jonathan Shaw, QLS Symposium March 2009.
In this paper, Jonathan Shaw argues that inadequate systems, training and practices – not dishonest or unethical behaviour – are the primary cause of cost dissatisfaction and poor billing outcomes, and that practices should invest more in systems practices and training.
 
You and your Lawyer by QPILCH (October 2009)
A comprehensive clients’ guide to costs issues including costs agreements and disclosure, as well as how to resolve costs disputes, apply for an assessment or pursue a complaint, and more.
 
Queensland Cases
  

Connollys Lawyers Pty Ltd v Davis [2013] QCA 231
Bills of Costs – action to recover costs – where the client had retained the solicitor to two separate proceedings – where the client and solicitor signed a written costs agreement for each proceeding – where the client had difficulty in reading but signed the agreements upon the insistence of the solicitor – where after termination of the retainers the costs in both proceedings had exceeded the original estimates – where the client alleged the solicitor failed to meet obligations under Part 3.4 of the Legal Profession Act 2007 (Qld) (‘the Act’) including by failing to make adequate disclosure – consideration of the word “disclose” in s 308(1) of the Act and the phrase “unable to read” in s 314(2) of the Act – whether continuing disclosure in s 315 of the Act can be satisfied by regular invoices to the client.

 

Challen v Golder Associates Pty Ltd [2012] QCA 307

Costs assessment – interim and final bills – whether additional time period for application for assessment of interim bills after final bill.

LPA ss.3, 300, 308, 333, 335, 738. UCPR r 743C.

(See article about this case in Proctor December 2012 p.6)

 

Julstar Pty Ltd v Lynch Morgan Lawyers [2012] QDC 272
Costs assessment – whether inspection of file available where lien claimed – evidence for preliminary issue of factors relevant to discretionary decision to order assessment – whether grounds to be stated where full assessment sought. LPA s.325.
(See article about this case in Proctor November 2012).

 

Hayes v Mylne Lawyers [2012] QCATA 76

Minor civil dispute – where a law firm seeks recovery of legal costs – where the requirements of the LPA not satisfied concerning disclosure of information to clients – where the basis of the costs sought not disclosed in evidence.  LPA ss 308, 311, 316, 319, 320.

 

Paroz v Clifford Gouldson Lawyers [2012] QDC 151

Assessment – effect of failure to make disclosure required by statute – whether double penalty. Effect of costs agreement not complying in a material way with disclosure obligations – assess on the basis of a fair and reasonable amount. Costs agreement – whether applicable to work already done – how costs to be assessed. Disclosure obligations of solicitor – effect of material non-compliance on assessment.

LPA ss 300, 308, 310, 316, 319, 322, 335, 340, 341. UCPR r 678.

(See also the article about this case in the Proctor October 2012)


 

Southwell v Jackson [2012] QDC 65

Assessment of itemised bills – whether whole assessment ought to be set aside. Assessment of itemised bills – when retainer terminated – whether care and consideration claimable – whether cost of itemised bills claimable. LPA ss 340(1), 341(1). UCPR r 719, r 742.

(See also the article about this case in Proctor August 2012).

 

King v King [2012] QCA 81

Costs – where the applicant succeeded on an appeal – where no cost orders were made – where applicant’s lawyers were acting pro bono – where costs agreement varied 15 minutes before delivery of judgment – where new costs agreement provided for recovery of costs under pro bono arrangement – whether costs should be awarded to the applicant. LPA s 308.

(See also the article about this case in Proctor June 2012).

 

Tabtill No 2 Pty Ltd & Ors v DLA Phillips Fox (a firm) & Anor [2012] QSC 115

Costs – costs assessment – where legal services were provided by the respondents to the applicants between December 2007 and September 2011 – where 115 tax invoices were issued for those legal services – where applicant seeks assessment of costs pursuant to s 335 LPA – where many invoices were issued more than 12 months prior to the application being filed on 2 March 2012 – where respondent accepts that the applicant is entitled to assessment in relation to invoices issued within 12 months prior to 2 March 2012 – where respondent contends that the applicant is time-barred in relation to earlier invoices by virtue of s 335(5) LPA – whether invoices constitute interim or final bills – whether applicant is entitled to an assessment of costs on all invoices issued by the respondent.

Costs – itemised bills – where applicant seeks a direction pursuant to r 743C UCPR that the respondent deliver itemised bills – whether information provided by the respondents to the applicants is inadequate – whether the respondent should be directed to deliver itemised bills.

LPA ss 300, 330, 332, 333, 334,335, 341.

(See also the article about this case in Proctor July 2012).

Golder Associates P/L v Challen [2012] QDC 11.

Costs – assessment – series of bills – whether application within time – whether some bills interim bills – whether “final” bill delivered.  LPA ss 300, 332, 333, 335. (See also the article about this case in Proctor May 2012).  Note: This case was appealed – see Challen v Golder Associates [2012] QCA 307 (above).

Willey v Ross Lawyers [2012] QCATA 22

Minor civil dispute – where decision in default of response – where claim for legal fees – whether compliance with LPA – where delay in response not explained fully. QCAT Act 2009 s 61.  LPA ss 329, 331

O'Neill v Wilson [2011] QSC 220

Costs agreements - where solicitor relied on an unsigned 'costs agreement' - whether costs agreement existed.  LPA ss.319(1)(b), 322.

Ireland v Trilby Misso Lawyers [2011] QSC 127

Solicitor and client – retainer – duration, termination and change of attorney – where the respondent denied the appellant access to his papers unless outstanding fees were paid and other conditions were met – where the appellant had entered into a ‘no win, no fee’ agreement with the respondent.

Lawyers – liens – possessory lien – determination – whether appellant owes outstanding fees to the respondent – where the respondent refuses to deliver up papers on the appellant’s file – where the respondent claimed a possessory lien over the papers.

Turner v Mitchell Solicitors [2011] QDC 61

Costs assessment - series of bills - whether application within time - whether some bills interim bills - discretion to assess anyway. LPA ss 333, 335(2).

(See also article about this case in Proctor September 2011 and this CLE paper).

Franklin v Barry & Nilsson Lawyers (No 2) [2011] QDC 55

Costs – assessment – application to review costs assessor’s decision – where in 2003 the parties entered into a costs agreement for legal work directed to the Family Court – where in 2007 the proceedings were transferred to the Federal Magistrates Court – where the District Court held that the 2003 costs agreement was void with respect to new work done after transfer – where the Court subsequently ordered that eight bills be assessed by a costs assessor pursuant to s319(1)(c) of the LPA – whether the costs assessor erred in failing to properly consider the matters prescribed in s341(1) of the Act – whether the costs assessor erred in finding that the solicitors had failed to make disclosure pursuant to Chapter 3, Part 3.4, Division 3 of the Act – whether the costs assessor erred by applying the scale of costs under the Family Law Rules 2004 as a basis for determining a fair and reasonable value of legal services provided by the solicitors.

Edwards v Bray [2011] QCA 72.

Costs agreements – generally – where applicant solicitor retained by the respondents – where applicant delivered itemised account to respondents – where costs assessor appointed by Solicitors Complaints Tribunal – where costs assessment given on 9 May 2006 – where applicant filed a claim for fees in Magistrates Court – where respondents applied for summary judgment – where judgment was entered – where respondents unsuccessfully appealed to the District Court – where applicant sought leave to appeal to the Court of Appeal – whether a statutory debt came into being on the costs assessment becoming binding pursuant to QLS Act s 6ZE(2) – whether QLS Act s 6ZE(2) provides an alternative source of the solicitor’s entitlement to fees or costs – applicable limitation period pursuant to Limitation of Actions Act 1974 (Qld).

Cosmetic Surgery Advisory Centre v Hawthorn Cuppaidge & Badgery [2011] QMC 33.

Costs assessment - non-associated third party payer - whether the amount claimed is fair and reasonable in the circumstances. UCPR r.742(6). LPA s 341(3).  Boyce v McIntyre [2008] NSWSC 1218 (and see Proctor April 2009 Practice and Procedure case note about this case - above). Boyce v McIntyre [2009] NSWCA 185. And see this CLE paper.

Clayton Utz Lawyers v P& W Enterprises Pty Ltd [2011] QDC 5.

Legal practitioners – costs – whether bills constitute ‘itemised bills’.

(See also articles about this case in Proctor April 2011 and June 2011 and this CLE paper.

QCoal Pty Ltd v Cliffs Australia Coal [2010] QSC 479.

Solicitor and client costs – creation and duration of retainer – where order made that the applicants pay the respondents costs in a previous proceeding – where costs agreement made during the hearing of that proceeding and sought to be applied retrospectively – where applicants now seek declarations that the respondents’ costs agreement is not enforceable or voidable – where otherwise the applicants seek the costs statement to be struck out and declarations that the costs be assessed on the Court’s scale.

(See also the review of this case in Proctor April 2011).

Morales v Murray Lyons Solicitors [2010] QCATA 87

Minor civil dispute – jurisdiction of QCAT to hear disputes seeking recovery of legal fees as a demand for a debt or liquidated sum – conditions precedent to the recovery of legal fees that arise under the LPA.  LPA ss 319, 328, 329, 330, 331.

Legal Services Commissioner v Wright [2010] QCA 321

LPA 2007 s.301 – entitlement to itemised bill – meaning of ‘third party payer’ – whether legal obligation to pay costs.

(See also the review of this case in Proctor February 2011).

Quaresmini v Crouch & Lyndon [2010] FMCA 750

QLS Act s.48J.  LPA ss 329(1), 330, 331.

Amos v Ian K Fry & Company [2010] QCA 131

Procedure – costs – where order made for trustee/executor to deduct such costs from beneficiary’s share of estate as attributable to his conduct in commencing proceedings – where beneficiary refused leave to commence proceedings to seek a costs assessment order – where beneficiary sought leave to appeal from decision – whether beneficiary had standing to seek costs assessment order against trustee’s solicitor – meaning of ‘third party payer’ in the LPA – whether beneficiary had a legal obligation to pay costs.

(See also the review of this case in Proctor August 2010 and further comments in Proctor February 2011 at pp 52-53).

Legal Services Commissioner v Diane Marie Wright [2010] QSC 168

Professions and trades – lawyers – complaints and discipline – generally – where respondent solicitor refused to provide itemised bill on the basis that the party seeking the itemised bill was not a client or third party payer – where complaint lodged with Legal Services Commissioner – where Commissioner filed originating application seeking declarations that the complainant was a client of the respondent, a third party payer or otherwise entitled to apply for an assessment of the subject costs – where applicant submitted that an implied retainer arose between the complainant and respondent solicitor – whether complainant was a client of the respondent solicitor – whether complainant was a third party payer within the meaning of the LPA 2007.

(See also the review of this case in Proctor August 2010.  Also note this decision was appealed – see appeal decision above.

State of Queensland v Masman [2009] QSC 430

Clients paid $95,000 to solicitors as retainer for legal services – whether the money was held on trust for clients – whether the money became property of the solicitors – whether the money could be subject to previous restraining orders under Criminal Proceeds Confiscation Act 2002 (Qld).

Chadwick Lawyers v McMullen [2009] FMCA 992

LPA 319, 329, 331.

Legal Services Commissioner v Dempsey [2009] LPT 20

See charges 1 and 2.

Vitobello & Hayter v Russell & Co [2009] QDC 249

LPA ss 300, 335 - whether information in solicitors’ ledger was an ‘itemised bill’.

Legal Services Commissioner v Shera [2009] LPT 015.

Overcharging in a legal aid matter.

Legal Services Commissioner v Duffield [2007] LPC 05/07.

Overcharging where no executed client agreement.  This case refers to s 48I of the Queensland Law Society Act 1952 which was in similar terms to the current s 319 LPA.  (This case report is not available on the internet but see this Proctor article October 2008 pp 45-46).

Legal Services Commissioner v Hoolihan [2007] LPT 003.

Failure to comply with request for bills and itemised accounts. See charges 9, 18 and 25.

Baker v Legal Services Commissioner [2006] QCA 145.

See charges 1, 2, 7, 9, and 10.  See also the June 2006 Proctor article about this case.

Legal Services Commissioner v Towers [2006] LPT 3.

Grossly excessive charging by solicitor attorney of an incapacitated client.  Charging at professional rates for non-professional activities.  Failure provide itemised account.

In the Matter of Frank Nicholas Cop SCT/116 (3 February 2004).

Failure provide bill of costs, failure make written client agreement, increasing costs where no reservation clause, charging for work after termination of retainer, demanding payment of costs from a non-client with threat to sue, threat to sue for costs unless complaint to QLS withdrawn.

Council of the Queensland Law Society Inc v Roche [2003] QCA 469.

Where solicitor acted for client under retainer – where solicitor sought to execute new retainer involving blended rates - where no evidence that solicitor advised client to seek independent legal advice - where client executed new retainer - where solicitor charged client high fees under new retainer - whether fees charged under new retainer constituted gross overcharging - whether solicitor committed breach of fiduciary duty to client.

This case is examined in detail in the LSC speech Wounding the bull: costs in a disciplinary context.

 

Maximum Interest Rate for Unpaid Solicitor Client Costs

See Legal Profession Act 2007 s.321 ‘Interest on unpaid legal costs’ and Legal Profession Regulation 2007 s.82. Under these provisions a law practice is entitled to charge interest on unpaid legal costs in limited circumstances, and the rate of interest charged must never exceed the Reserve Bank of Australia Cash Rate Target plus 2%. So whenever a bill is given which includes interest the Cash Rate Target should be checked using the RBA website.
 
For interest to be chargeable the bill must contain a notice – for details see the final 2 pages of the QLS Costs Guide.
 
And see the August 2012 Proctor article Does it add up? Changing interest on unpaid legal costs.
 
Personal Injuries Law Costs

 

Queensland Parliament Finance and Administration Committee: Report No. 28 - Inquiry into the Operation of Queensland's Workers' Compensation Scheme – see pp.166 to 175 which deal with ‘no-win-no-fee’ arrangements and the 50/50 rule.

Costs Payable in Personal Injury Claims under the Various Legislative Regimes by Paul Garrett, QLS Personal Injuries Conference July 2010.

 “The 50% Rule” for Speculative Matters
The rule is to be found in sections 345 to 347 of the Legal Profession Act 2007, Division 8 of Part 3.4 ‘Speculative Personal Injury Claims’.
 
The rule provides that solicitors may apply to the QLS Council for approval to charge more than the 50% cap. The following guidelines relate to this: “Guidelines for consideration of applications to be paid more than 50% of the net damages in a speculative personal injury matter”.
 
The LSC made an application to the court for declarations as to the proper construction of the rule as it was under the Queensland Law Society Act 1952, specifically as to the definition of “disbursements” (where the client had a litigation loan) and the treatment of GST. The case also made it clear that a client may not contract out of the rule in a client agreement (paragraphs 8-9).
 
These guidelines were issued following the Court of Appeal decision in LSC v Dempsey.
 
This short article is about the QCA Dempsey decision and the LSC guidelines.
 
Disciplinary charges were proved against this solicitor for charging more than permitted by the rule (charge 5) and for purporting to have his client “waive” the 50% rule (charge 6). The judgment makes it clear that a client may not waive the rule, the only way a solicitor may charge more is by approval of the QLS Council. See paragraphs 1-4, 84-112, 125-130.
 
Criminal Law Costs
 
Costs in Criminal Law by Glen Cranny, QLS Criminal Law Conference 13 October 2009.
This brief paper discusses a range of costs issues including the pros and cons of different billing methods (time-costing, fixed fees and event or task based charging), overcharging, handling fee discussions, retainer agreements and care and consideration, and will be of interest to practitioners in areas other than criminal law.
 
Clients paid $95,000 to solicitors as retainer for legal services – whether the money was held on trust for clients – whether the money became property of the solicitors – whether the money could be subject to previous restraining orders under Criminal Proceeds Confiscation Act 2002 (Qld).
 
Costs in the Criminal jurisdiction: the Justices Act 1886 by K A Mellifont, QLS Criminal Law Conference 13 October 2009.
 
Family Law Costs
 
Family Law Council and Family Law Section of the Law Council of Australia, 2nd edition October 2010 – see in particular Part 3 ‘Costs’ and Part 1, section 5 ‘Legal Aid’.
 
Barristers’ Costs
 
Barristers’ costs are regulated by largely the same provisions as apply to solicitors’ costs, namely the Legal Profession Act 2007, Legal Profession Regulations 2007 and the Uniform Civil Procedure Rules 1999. See above under ‘Legislation’ for details and links.
(Note that the definition of “law practice” in Schedule 2 of the LPA includes a barrister).
 
Also see the 2011 Barristers Rule. There is little of relevance to costs in these rules, but see ss. 95(h), 99(c), (d) about when briefs must or may be refused or returned for reasons relating to costs issues.
 
There is no longer a protocol between the QLS and the Bar Association of Queensland for the resolution of fee disputes but the QLS supports mediation to amicably resolve such disputes. See Disputes on barristers’ fees by then QLS President Peter Eardley, Proctor September 2010 p 10.
 
Barristers' cancellation fees (QLS Update email 4 August 2009).
Also see Levy v Bergseng [2008] NSWSC 294 - availability of cancellation fees as a matter of law – "reasonableness" of cancellation fees.
The Legal Services Commission has commented on this issue in its Draft Regulatory Guide 3-2012 Billing Practices - Key Principles at p.11, and in Counting the costs at p.11. Also see the LSC/Griffith University Symposium report On Costs (May 2011) at pp.13-23.
 
Itemisation and assessment of a barrister’s fee note by Richard Douglas SC Hearsay April 2011.
 
A discussion of problems arising from the difference between the 12 month extendable time limit for a client to apply for assessment of their legal costs (including counsel's fees) and the 60 day non-extendable limit for a solicitor to apply for an assessment of counsel's fees. A solicitor may remain liable to counsel in full even if the fee is reduced on assessment.
  

Queensland Supreme Court Library resources

Quick on Costs (please contact the library on 3247 4373).

Document Delivery and Research Requests. QLS members can make document delivery and legal research requests through the QLS website.

G E Dal Pont Lawyers’ Professional Responsibility (2012)

·        Chapter 14: Costs Disclosure and Costs Agreements

·        Chapter 15: Recovery of Costs from Clients

(Available from Supreme Court Library using above link. Please be advised that, under Copyright legislation, Libraries are only able to supply one chapter per text.)

Guidance on costs issues is available from QLS Ethics Solicitors on 3842 5843 or email ethics@qls.com.au

 

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