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  • Solicitors acting for themselves in litigation can recover costs under the rule of practice known as the Chorley exception.
  • However, recent cases have examined the operation of the Chorley exception in new statutory contexts and have questioned its application and continued existence.
  • Solicitors need to be aware of this developing area of law as it is likely to change or be modified in future decisions.

There is a general rule of practice in costs that a litigant in person who is successful is entitled to recover disbursements but is not entitled to claim costs for the time spent in the conduct of the litigation (Cachia v Hanes (1994) 179 CLR 403 (‘Cachia)).

The general rule is subject to an exception in favour of solicitors (‘the Chorley exception’), derived from the case from which it takes its name: The London Scottish Benefit Society v Chorley, Crawford & Chester (1884) 13 QBD 872 (‘Chorley’). The Chorley exception has been accepted by the High Court, with some apparent misgivings, and both applied and distinguished by State courts ever since. The Chorley exception is a rule of practice, rather than a rule of law (Khera v Jones [2006] NSWCA 85), which must yield to contrary statutory provisions and the court has a discretion whether it should be applied.

A recent decision of the Court of Appeal has given rise to the question as to whether the Chorley exception continues to operate in the context of the Civil Procedure Act 2005 (NSW) (‘CPA), as that Act is significantly different to previous legislation in relation to the definition of costs.

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