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Section 26:
Challenging one's own lawyer's bill
Proposal 54
Proposal 54
Procedures should be adopted to make challenges by clients to their lawyers' charges
subject to a test whereby the necessity for the work done, the manner in which it was done
and the fairness and reasonableness of the amount of the costs in relation to that work, are
all subject to assessment without any presumption that such costs are reasonable.
Interim Report paras 576-583
Proposal 54 addresses the situation where a party's solicitors render their costs bill
after having done the relevant litigation work and the client wishes to challenge that
bill as excessive. The procedure for such a challenge is a "solicitor and own client
taxation" of the bill before a master. What should the criteria be for a successful
challenge
The current rules (which are examined more closely below) provide that "all costs
shall be allowed except in so far as they are of an unreasonable amount or have been
unreasonably incurred."
The criterion is, in other words, that of unreasonableness.
It is presently buttressed by presumptions: one conclusively in favour
and one
rebuttably against
reasonableness. Proposal 54 canvasses replacing these rules with
a rule which dispenses with such presumptions and allows a taxing master to examine
at large the need for the work done, how it was done and the fairness and
reasonableness of the amount of the costs in relation to that work.
Notes
O 62 r 29(2): "For the purposes of paragraph (1), all costs incurred with the express or implied
approval of the client shall, subject to paragraph (3), be conclusively presumed to have been
reasonably incurred and, where the amount thereof has been expressly or impliedly approved by the
client, to have been reasonable in amount."
O 62 r 29(3): "For the purposes of paragraph (1), any costs which in the circumstances of the case
are of an unusual nature and such that they would not be allowed on a taxation of costs in a case to
which rule 28(2) applies, shall, unless the solicitor expressly informed his client before they were
incurred that they might not be so allowed, be presumed, until the contrary is shown, to have been
unreasonably incurred."
Similar to rules found in the New South Wales Legal Profession Act 1987.
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