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The costs of lawyer litigants – ‘Chorley’ off to the High Court

Some important cases in legal history have involved small amounts of money, in particular where the matter is pursued as one of principle. Lawyers will know of the disputed ferry fare of one penny, in Balmain New Ferry Co v Robertson,[1] involving as it did the more important issue of false imprisonment.

The High Court has agreed to hear a matter involving, not quite just a penny, nor anything as important as personal liberty, rather, $44,000 in legal costs being pursued by a barrister.

The question is whether, while a self-represented lay litigant cannot recover their legal costs,[2] a lawyer who represents themselves in their own proceedings can claim their costs.

The answer is yes.

This is what is known as the Chorley exception, discussed in Revisiting the Chorley Exception.[3] It cover the fees of barristers.  The appeal is from the September 2018 decision of the NSW Court of Appeal in Janet Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150.

As Mr Brett Walker SC acknowledged at the special leave hearing, while the applicant barrister’s claimed costs – $44,000 – were ‘relatively modest’, the

‘costs of litigation loom large in the Court’s supervision as a matter of its doctrine of how and why they can be ordered to be paid. Costs shifting is a critical part of the administration of justice …’.

The argument of the respondent law firm that the amount of money involved was only small (in the scheme of legal costs) did not prevail.

But the respondent also raised the fact that the High Court had initially granted leave in 2017 in a similar matter – Coshott v Spencer – but that leave was then revoked during the hearing as it became apparent that the case did not raise the necessary issues for the High Court’s consideration.

Hence, one would think the High Court gave good thought to whether the matter of Pentelow does in fact directly raise the validity of the Chorley exception.

Supreme Court of New Zealand

The rule remains law in England,[4] but it has been the subject of detailed consideration by the Supreme Court of New Zealand as recently as November 2018.[5] The Court canvassed a range of law and policy issues, referring to UK, Australian and Canadian cases,[6] and disagreed with an earlier NZ Court of Appeal decision of 2017. The Supreme Court came to the ultimate view that reform or change of the Chorley exception and its related rules was for the legislature to decide.

When the matter is heard, the Australian High Court in Pentelow will no doubt find assistance in the decision of its sister Supreme Court in New Zealand.

——————————————— 

[1] [1906] HCA 83

[2] They can in the UK, see Litigants in Person (Costs and Expenses) Act 1975

[3] London Scottish Benefit Society v Chorley (1884) 13 QBD 872

[4] Robinson v EMW Law LLP [2018] EWHC 1757

[5] McGuire v Secretary for Justice [2018] NZSC 116 (27 November 2018)

[6] Although not to the NSWCA decision in Pentelow.

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