Revisiting the Chorley exception

While it has been said that lawyers acting for themselves have fools for a client, the law does not discourage them by what is known as the ‘Chorley exception’.

There is a long-standing rule that although self-represented litigants are not entitled to professional costs in acting for themselves in court proceedings, there is an exception where a solicitor is self-represented. The Chorley exception is named after the decision in London Scottish Benefit Society v Chorley (1884) 13 QBD 87.

The exception is not particularly popular among the courts. In Murphy v Legal Services Commissioner (No 2) [2013] QSC 253 Daubney J declined to extend the exception to barristers in the absence of any authority that “the ‘anomalous’ and ‘somewhat dubious’ exception in favour of a self-represented solicitor extends to a self-represented barrister”.

The High Court in Cachia v Hanes [1994] HCA 14 had cast doubt on the rule, but the rule remained, other appeal courts accepting that it applied and that only the High Court could alter this: Waller v Freehills [2009] FCAFC 89.

The High Court has now decided to grant special leave to appeal from a 2017 decision of the NSW Court of Appeal – Coshott v Spencer [2017] NSWCA 118 – which held that the Chorley exception still applies in Australian law and that statutory provisions as to costs in NSW had not removed it: Coshott v Spencer & Ors [2017] HCATrans 263, 15 December 2017.

The High Court in Cachia v Hanes had cited old English authority purporting to justify the exception:

“Professional skill and labour are recognised and can be measured by the law; private expenditure of labour and trouble by a layman cannot be measured. It depends on the zeal, the assiduity, or the nervousness of the individual. Professional skill, when it is bestowed, is accordingly allowed for in taxing a bill of costs; and it would be absurd to permit a solicitor to charge for the same work when it is done by another solicitor, and not to permit him to charge for it when it is done by his own clerk.”

The High Court said that

“those assertions that it would be “unadvisable” or “absurd” to refuse to allow a solicitor who acts for himself “to charge” for the work done by himself or his clerk ignore the questionable nature of a situation in which a successful litigant not only receives the amount of the verdict but actually profits from the conduct of the litigation”.

While the exception may be revisited, it was nevertheless recently endorsed, and explained in detail, by the English Court of Appeal in Halborg v EMW Law LLP [2017] EWCA Civ 793.

The High Court will hear the matter in 2018.

 

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