Lawyers now more equal

Articles, Procedure + Litigation

A recent decision of The High Court of Australia in Bell Lawyers Pty Ltd V Pentelow [2019] HCA 29 has removed from Australian law a benefit lawyers (more properly solicitors) have enjoyed for well over 100 years.

It is usually the case that a party who is successful in a court case is given the benefit of an order that the unsuccessful party pay the winners legal costs. Such an order is usually made to recompense a successful party for monies they spent in recovering their judgment. It is not an order designed to allow party to make any profit.

It has long been the law that a party is entitled to only cover legal costs it pays to its lawyers. A person who represents themselves in litigation is not entitled to the benefit of a costs order for the time they spent in the case. A consulting engineer who charges his or her clients $500 an hour is not entitled to payment of the time he/she spent on the litigation even though the value of his/her time could easily be quantified. That is so even if the engineer acted for herself and did not use lawyers.

For well over 100 years an exception to this rule has been circumstances in which a lawyer acts for himself. If a lawyer sues a client for, say, unpaid legal fees if the lawyer succeeds the lawyer has until now been entitled to recover legal costs even though the lawyer has acted for himself.

In Bell Lawyers the High Court considered the situation in which a barrister had claimed payment of her costs for acting for herself in a dispute with solicitors over unpaid fees.

As an aside, although it is not relevant to the most important part of the judgment, the Court held that the exception had never applied to barristers but only to solicitors. It is not often solicitors find themselves in a better position than barristers!

Alas, however that is no more.

The Court went on to hold that to the extent the exception for solicitors had been part of the common law of Australia, it should no longer be. The Court held that the exception

“… is an affront to the fundamental value of equality of all person before the law.”

The Court upheld the appeal and in doing so overturned over 100 years of established authority which favoured solicitors and no one else.

For obvious reasons we are not going to make any comment on whether we are happy with the judgment but thought it may be of interest to our readers.

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