By and -

Snapshot

  • The High Court has abolished the so-called ‘Chorley exception’, meaning self-represented legal practitioners can no longer recover costs for time spent on litigation. Disbursements remain recoverable however.
  • Parties who are not legal practitioners can still claim the costs of employed solicitors.
  • The position of incorporated legal practices remains unclear and may require clarification, ultimately by the High Court.

There is a general rule about the recoverability of legal costs in litigation. It is that a party who is self-represented cannot recover costs under an order for costs for time spent on the litigation. Disbursements are, however, recoverable. An exception to the general rule is known as the Chorley exception: it has provided that where the party is a solicitor, that party can recover costs for time spent. In some courts, but not in others, the Chorley exception was extended to barristers. On 4 September 2019 the High Court delivered judgment in Bell Lawyers v Pentelow (Bell Lawyers) [2019] HCA 29, and held that the Chorley exception is not part of the common law of Australia.

Practical ramifications

The practical ramification of the decision is that solicitors and barristers who are self-represented cannot claim for their own time spent on the litigation, where they are awarded costs by the court.

Bell Lawyers v Pentelow

In Bell Lawyers the respondent, a barrister, was retained by the solicitor and had issued invoices for her fees. The solicitor had paid part but not all of the fees. The barrister sued unsuccessfully in the Local Court for those fees but the result was reversed on appeal to the Supreme Court, and the costs of the Supreme Court and Local Court proceedings were awarded to the barrister. In the Local Court the barrister had retained a solicitor, who was on the record. In the Supreme Court, the barrister had retained a solicitor, who was on the record, and a barrister.

When the costs of the proceedings came to be assessed, the barrister claimed the costs of her legal representatives and also costs for work she had performed in the matters. The costs assessor did not allow the costs of the work the barrister had performed herself. The review panel agreed with the costs assessor. The barrister’s subsequent appeal to the District Court was dismissed by Judge Gibson. The barrister sought judicial review. The Court of Appeal, by majority (Beazley P and Macfarlan JA; Meagher JA dissenting) upheld the review, holding that the Chorley exception was part of the law of NSW, that it extended to barristers and that the barrister was self-represented for the purpose of the rule.

A seven-member bench of the High Court allowed the appeal from the decision of the Court of Appeal. Four separate judgments were delivered: the plurality consisted of Kiefel CJ, Bell, Keane and Gordon JJ; Gageler, Nettle and Edelman JJ each delivered separate judgments. The judgments were unanimous in holding that the Chorley exception did not apply to barristers. All but Nettle J went further in finding that the Chorley exception was not part of the common law of Australia, meaning that the exception does not exist for the benefit of solicitors either.

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