The question of costs occupies a significant amount of the life of a proceeding and complexities surrounding costs are difficult to unravel. The losing party will usually pay the successful party’s costs that were reasonably incurred for running the proceeding.

Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 15 demonstrates an important principle that courts use to determine costs when a successful litigant is self-represented.

Background

Self-represented litigants are on the whole not able to claim for their costs, even when successful, except for disbursements (such as court filing fees and expert witness appearances): see Cachia v Hanes (1994) 179 CLR 403.

The eponymous Chorley Exception, as described in London Scottish Benefit Society v Chorley (1884) 13 QBD 872, holds that where a self-represented litigant is a qualified solicitor, they are entitled to claim professional costs for legal work they performed themselves.

The principle holds because solicitor costs are quantifiable by the courts. Costs claimed by a layperson for representing themselves for time spent performing legal work are necessarily more amorphous and will not accurately reflect the actual costs that would usually be involved.

The Chorley Exception has some limits. A solicitor cannot claim costs for instructing themselves or attending on themselves as they would do when they act for a litigant. As observed by Madden CJ in Ogier v Norton [1904] VLR 536, it would be absurd for a solicitor or barrister to claim costs that duplicate themselves as both client and solicitor and to profit on providing their own counsel.

In Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150 (“Pentelow”), the New South Wales Court of Appeal considered a claim for costs from a barrister that had been owed money by an instructing solicitor. The applicant had been successful in those proceedings and now sought to claim for costs incurred in that original proceeding.

Issues

The Court was tasked with considering whether:

(a) the Chorley Exception applies to barristers, not just solicitors;
(b) a barrister is self-represented if they instruct solicitors to act for them but do much of their own legal work; and
(c) whether the Chorley Exception would apply to an otherwise eligible costs applicant performed legal work themselves.

Decision

In a 2:1 judgment, the Court held that:

(a) self-represented barristers are subject to the Chorley Exception in circumstances where:
(i) admission to practice law is uniform for both barristers and solicitors under the Legal Profession Act 2004 (NSW);
(ii) the work performed by solicitors and barristers contains significant crossover, such as drafting pleadings and affidavits, as prescribed in the New South Wales Bar Association Barristers’ Conduct Rules.
(b) the fact that the applicant instructed solicitors does not preclude claims for work performed by the applicant; and
(c) while the applicant is entitled to recover their own costs, the Chorley Exception should be read narrowly and any discussion of it by lower courts should be confined to the facts of the case.

Heading to the High Court

The High Court of Australia is currently considering an Application for Special Leave to Appeal in Pentelow, which has yet to be determined. While the position in Pentelow was a consistent application of common law surrounding the Chorley Exception, there is speculation that the High Court is interested in having their say on the issue.

In a recent High Court Case regarding the self-representative costs, Coshott v Spencer [2017] HCATrans 263, special leave was granted and the matter was listed to be heard before 7 judges. This leave was ultimately rejected once it was discovered that the respondent was operating through an incorporated legal practice and the case was not an appropriate vehicle to assess the issue. While this case highlights the issue of the Chorley Exception applying to practitioners operating through such entities, it also indicates the High Court’s interest in this area of law.

Conclusion

Costs in legal proceedings are often difficult to ascertain and rely on considerable judicial discretion after an assessment of costs.

The application of the Chorley Exception to barristers is logical where the legal qualifications of solicitors and barristers and the work that they perform in proceedings overlaps. However, this does not mean there is a natural extension of the underlying principle to barristers as a whole.

Self-represented litigants should be aware that unless they are legal professionals, they are not entitled to claim any costs except those that come straight out of pocket.
Until such time as the High Court rules has an opportunity to rule on this issue, those that come up against self-represented litigants that are solicitors or barristers should also be aware of the risk of having to pay the other side’s costs subject to the Chorley Exception.