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  • Practitioners need to take care in analysing the cause of action for recovery of fees and when it accrues, as it can differ from the client’s cause of action for recovery of an overpayment of fees.
  • The solicitor’s claim for fees is one based in contract or quasi-contract and the distinction can make a difference to the limitation period.
  • A client’s right to recover fees overpaid to a solicitor is a cause of action which is in essence restitutionary and grounded in statute.

Limitation periods arise in solicitor/client costs disputes in two ways: by a solicitor seeking recovery of fees, and by a client seeking to recover fees overpaid. The accrual of the solicitor’s cause of action has not received significant attention. The treatment in case law is clouded by the doctrine of entire contract, which provides that a solicitor’s entitlement to payment does not arise until the whole of the work is completed. The client’s cause is not as straightforward as it seems and recent developments discussed below have illuminated this area.

Identifying the cause of action

A solicitor’s cause of action to recover fees arises either in contract or quasi-contract (Coshott v Lenin [2007] NSWCA 153).

The client’s cause of action for overpayment, or overcharging, can spring from a number of sources: money had and received, breach of contract, tort, misleading and deceptive conduct and also a statutory cause of action which arises following an assessment of costs.

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