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  • A breach of the disclosure requirements under Part 4 of the Uniform Law may render a solicitor’s costs agreement void ab initio, however the agreement will not ‘cease to exist’.
  • If a costs agreement is found to be void due to a breach of the disclosure requirements, a law practice is not entitled to recover fees in excess of the amount it would have been entitled to recover, had the costs agreement not been void.
  • Care should be taken by a party when registering a certificate of determination of costs as to whether the assessed costs are due and payable.

The Court of Appeal in Bingham v Bevan [2023] NSWCA 86 has recently determined several questions regarding the operation of the Legal Profession Uniform Law (NSW) (‘the Uniform Law’) . The resulting judgment imparts valuable knowledge to the profession in an area of the law otherwise relatively uncharted in terms of established legal precedent.

Recap of the facts

The proceedings concerned a barrister, Mr Christopher Bevan, (‘the Barrister’) who was seeking to enforce payment of fees billed to his instructing solicitor, Mr John Bingham, (‘the Solicitor’) in a special leave application in the High Court.

During the course of the High Court proceedings, the Barrister had provided three costs agreements to the Solicitor. The costs agreements provided estimates of the Barrister’s fees, initially at $63,000 – $75,000 plus GST, which was later updated to $60,000 plus GST, and subsequent to the completion of the brief, an additional $31,000 plus GST.

The costs agreement contained what is colloquially referred to as a ‘paid if paid’ provision. A ‘paid if paid’ provision provides that a solicitor’s liability for a barrister’s fees is conditional on the solicitor recovering those fees from the client.

The Barrister issued invoices to his instructing solicitor that were significantly higher than the estimates that had been initially given and in excess of $300,000. The Barrister applied to have his costs assessed.

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