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Barrister to pay costs for failing to argue the Chorley exception
The High Court of Australia has ordered a barrister to pay costs to an appellant following the decision the Chorley exception does not apply to solicitors in NSW.
Naomi Neilson
Janet Pentelow sued Bell Lawyers after the legal practice failed to pay full costs of her services to appear in proceedings in the Supreme Court. Part of her sum was for “costs incurred on her own behalf”, which was dismissed in Appeals as being “absurd”.
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The High Court of Australia determined Ms Pentelow could not sue for costs accrued from representing herself because the Chorley exception “is not only anomalous, it is an affront to the fundamental value of equality of all persons before the law”.
As a general rule, a self-represented litigant could not obtain recompense for the value of their services. An exception to this – dubbed the Chorley exception – could see the solicitor recovering his or her professional costs of acting in the litigation. This rule has not been approved in NSW, and as such would not cover Ms Pentelow’s costs.
The High Court’s decision centred on whether other professions, including an engineer or a builder, could reclaim costs for time spent unrepresented in their own cases, upon such a time they are using their own expertise to perform legal work. This includes the work taken in preparing submissions on matters specific to their expertise.
The High Court of Australia said: “[There is no] reason to treat solicitors differently from other professions due to particular duties that they owe in the course of representing others. Although an unrepresented solicitor who is party to an action is often described as ‘self-represented’, the solicitor…. does not ‘represent himself or herself’.”
“The solicitor’s role as an agent for another is absent…. as the joint judgment explains it also, it is undesirable for solicitors to act for themselves.”
The Chorley exception was dismissed also on the grounds that Ms Pentelow had been represented in prior Local Court proceedings and by solicitors and senior counsel in a Supreme Court proceeding. In each proceeding, Ms Pentelow undertook preparatory legal work, which included attending court in person and drafting affidavit evidence.
“The Court of Appeal proceeded on the basis that the issue was whether the Chorley exception applied to the respondent as a barrister, in circumstances where she had undertaken legal work in litigation in which she was represented,” the High Court said.
In determining whether Ms Pentelow could sue for the costs of her own legal work, the High Court of Australia also determined if the Chorley exception should be reviewed in NSW to allow for barristers to reclaim lost costs in cases they represent themselves.
The High Court ruled “it cannot be justified by considerations of policy said to support it” and so “it should not be recognised as part of the common law of Australia”.
