By Michelle Castle and Andrew Bailey -
Snapshot
- Taking proceedings for the recovery of professional costs (or disbursements) on a contract for provision of legal services is not necessarily the most efficient means of recovering payment owing to a practitioner.
- The costs assessment scheme provides a mechanism by which practitioners can seek to have fees assessed, and then file the certificates of determination so they are taken to be judgments of the Court in which they are filed.
- Where a practitioner or client takes the approach of assessing costs whilst underlying recovery proceedings are on foot, there is a risk (with those assessments occurring under the Legal Profession Act 2004 (NSW)) that the assessment proceedings may be injuncted and the entirety of the dispute litigated in court. For assessments occurring under the Legal Profession Uniform Law Application Act 2014 (NSW) or the Legal Profession Uniform Law (NSW) No. 16a, such outcomes are less likely to arise as costs assessors have power to conduct oral hearings.
Deciding whether to proceed to costs assessment or whether to commence proceedings is a difficult decision for practitioners. On the one hand, there are considerations of whether or not the practitioner can undertake an assessment at all: a topic considered in our last article which dealt with the ‘commercial or government client’ – a term specific to the LPUL (see: ‘Legal costs: grappling with complexities in the Legal Profession Uniform Law’ 43 The Law Society of NSW Journal, April 2018, 80-81) .
Following the observations made by the NSW Court of Appeal in Attard v James Legal Pty Ltd [2010] NSWCA 311 (‘Attard’) and Branson v Tucker [2012] NSWCA 310 (‘Branson’), it is now relatively settled that practitioners can choose to commence proceedings or choose to proceed to assessment in order to recover legal costs. In Attard, Tobias JA observed (and Beazley JA (as her Honour then was) agreed), that ‘[a]lthough there may be some doubt as to whether … a finding that Division 6 of Part 11 of the LPA provided a complete and exclusive code as to how legal costs were to be assessed, in my opinion if … [such a finding was made, it] would be in error’ (at [179]). That proposition, amongst others, was unsuccessfully challenged subsequently.
