Philippe Doyle Gray | Barrister

Legal Costs

The moment that justice must be paid for by the victim of injustice it becomes itself injustice.
— Benjamin Ricketson Tucker, 19th-century proponent of American individualist anarchism
Victims should not be denied justice because they cannot afford the cost of photocopying.
— Philippe Doyle Gray
Alfred Montapert once said, ‘Don’t confuse motion and progress. A rocking horse keeps moving but doesn’t make any progress.’ The same holds true for litigation. Many litigators are not only on a rocking horse, but they are on a rocking horse attached to a carousel. They move a lot, but they are not making much progress. Old habits force them to go in circles, a vicious cycle that leads to costly and inefficient litigation.
— Heath J. Szymczak, Jaeckle, Fleischmann & Mugel, LLP in Buffalo, New York
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Costs disclosure before settlement

The Legal Profession Uniform Law (LPUL) requires costs disclosure before settlement: s.177 LPUL. Section 177, properly construed, means clients must know how much money will be put in their pocket, or taken from it if the matter settles.

Failure to disclose has 4 consequences for lawyers:

  1. the lawyer's costs agreement is void
  2. the client need not pay the lawyer's legal costs until they have been assessed—at the lawyer's cost
  3. the lawyer must not commence or maintain proceedings to recover the legal costs until they have been assessed—at the lawyer's cost, and
  4. the lawyer's failure may constitute unsatisfactory professional conduct or professional misconduct—and in the case of solicitors, by any principal of the law practice.

When calculating how much money will be put in a client's pocket, or taken from it, lawyers sometimes apply the Denuto Principle, made famous by the fictional solicitor Denis Denuto in the motion picture The Castle when addressing the Federal Court:

"In summing up, it’s the constitution, it’s Mabo, it’s justice, it’s law, it’s the vibe and aah no that’s it, it’s the vibe. I rest my case."

The Denuto Principle seldom discharges professional obligations. But, there is a better way.

My costs disclosure settlement computer is an intuitive electronic spreadsheet designed to make identification of, and compliance with, professional obligations easy. It automates just about everything dull and mathematical. Lawyers must focus on only 2 things:

  1. their own costs, and
  2. their own experience of costs assessment (also known as taxation of costs).