- Generally, a self-represented litigant may not obtain costs for the value of his time in litigation.
- An exception commonly referred to as “the Chorley exception”, allows a self-represented litigant who is also a solicitor to recover his professional costs of acting in the litigation.
- Bell Lawyers Pty Ltd (“Bell“) retained the Ms Janet Pentelow to appear in the Supreme Court of New South Wales.
- At the conclusion of those proceedings, a dispute arose about the payment of Pentelow’s fees. Pentelow sued Bell for her unpaid fees in the Local Court of New South Wales. Pentelow was unsuccessful, but she appealed successfully to the Supreme Court of New South Wales.
- Orders for costs were made in Pentelow’s favour in relation to both the Local Court and the Supreme Court proceedings.
- Pentelow then forwarded a bill of costs to Bell. This bill included sums for costs incurred on her own behalf and the provision of legal services by her. Although Pentelow was represented by a solicitor in the Local Court, and by solicitors and counsel in the Supreme Court, she had undertaken preparatory legal work and had also attended court.
- Bell refused to pay the costs for the work personally undertaken by Pentelow. A costs assessor rejected Pentelow’s claim for the costs of the work she had performed. This was affirmed on appeal before the District Court of New South Wales. Pentelow applied for a judicial review of the District Court decision in the Court of Appeal. The Court of Appeal held that Pentelow was entitled to rely upon the Chorley exception even though she was a barrister and not a solicitor.
- Bell appealed.
- Does the Chorley exception apply to barristers?
- The High Court held that the “anomalous” Chorley exception is not part of the common law of Australia and should not be extended to barristers.
- The majority of the High Court held that the Chorley exception should not be recognised as part of the common law because it is “an anomaly” that affronts the fundamental value of equality of all persons before the law and cannot be justified by the policy said to support it.
- The nature of the Chorley exception is also inconsistent with the definition of “costs” in s 3(1) of the Civil Procedure Act 2005 (NSW).
- Costs are entirely creatures of statute. The courts have regarded the statutory power to make an order for costs as confined by the concern to provide the successful party with “a measure of indemnity” against the expense of professional legal costs actually incurred in the litigation.
“The Chorley exception has rightly been described by this Court as “anomalous”. Because it is anomalous, it should not be extended by judicial decision to the benefit of barristers. This view has previously been taken by some courts in Australia. Dealing with the matter more broadly, however, the Chorley exception is not only anomalous, it is an affront to the fundamental value of equality of all persons before the law. It cannot be justified by the considerations of policy said to support it. Accordingly, it should not be recognised as part of the common law of Australia.”
(Kiefel CJ, Bell, Keane and Gordon JJ at page 1 )
The full text is available here: http://eresources.hcourt.gov.au/downloadPdf/2019/HCA/29
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