costs disclosure and assessment

Question 1

the two avenues available to a client in a dispute over costs? what section

Answer 1

setting aside a costs agreement (by application)
costs assessment
s 331

Question 2

when should disclosure be made to a client

Answer 2

In writing as soon as reasonably practicable after instructions have been taken s 310

Question 3

what are 6 common exceptions to costs disclosure?

Answer 3

1 costs not likely to exceed $750 (excl GST) (disclose if likely to exceed)
2 client has received one or more disclosures in the last 12 months
3 client has agreed to waive the right to a CD
4 principal of law practice believes on reasonable grounds that it’s not necessary (practice to keep a written record of decision with files)
5 the client is a law practice or public company
6 if the client is a sophisticated client
s 311

Question 4

additional disclosure required by a law practice in a litigious matter

Answer 4

1 reasonable estimate of the amount of costs payable if the matter is settled;
2 reasonable estimate of any contributions likely to be received by the other party
s 312

Question 5

what should a law practice do if there is a substantial change to something in the CD? what section

Answer 5

make further disclosure in writing as soon as they are aware of the change s 315 (ongoing obligation to disclose)

Question 6

What 4 things may happen if you fail to disclose costs

Answer 6

costs agreement is set aside s 316(3)
the client need not pay costs until they are assessed s 316(1)
May not maintain proceedings against the client until the costs have been assessed s 316(2)
costs assessor may reduce costs proportionally to the seriousness of the failure to disclose s 316(4)
findings of UPC PMC

Question 7

what must you give a client if they request a progress report?
Are there any exceptions to progress reports?

Answer 7

a written report of the matter and a written report of the costs incurred
Yes, no requirement to give a progress report to a sophisticated client
s 317

Question 8

On what basis are legal costs recoverable (3 things)

Answer 8

under a valid costs agreement
according to the fair and reasonable value of the services provided
under the applicable scale of costs
s 319

Question 9

When can a law practice start charging interest on unpaid legal costs?

Answer 9

30 days after the bill becomes payable provided the costs agreement says interest is payable

Question 10

If a costs agreement includes a written offer, what 3 things must it state?

Answer 10

it’s an offer to enter a costs agreement
it can be accepted in writing or by other conduct
the type of conduct that constitutes acceptance

Question 11

what 4 factors are considered in deciding whether to set aside a costs agreement that is alleged is not fair and reasonable?

Answer 11

if the client was induced into a costs agreement by fraud or misrepresentation; lawyer guilty of UPC or PMC; failure to make disclosure; how the agreement addresses changed circumstances

Question 12

how can a costs agreement be set aside?

Answer 12

if by application to QCAT it’s decided that costs are not fair and reasonable.
S 328

Question 13

when will a court order costs are payable before 30 days after bill is given?

Answer 13

satisfied the person may leave the jurisdiction
S 329(2)

Question 14

what are the 3 mandatory requirements of a bill?

Answer 14

must be signed
include a statement about costs assessment and setting aside costs agreements
time limits they have to take action
S 331

Question 15

how long does a client have to make an application about costs assessment?

Answer 15

12 months unless the costs assessor considers reasons for the delay

Question 16

mandatory requirement of a legal practice subject to a costs assessment

Answer 16

must participate

not start recovery action until assessment is complete

Question 17

who pays the costs of costs assessment?

Answer 17

the law practice if costs are reduced by 15%

s 342

the law practice if they failed to make disclosure

Question 18

When can a costs assessor refer a matter to the commissioner?

Answer 18

costs are reduced by 15% or more
costs assessor believes costs were grossly excessive
costs assessment raises issue of PMC

Question 19

What is the purpose of a trial judge giving either a Domican, Longman, McKinney or Jailyard direction

Answer 19

The purpose os to urge the jury to seek some corroborative evidence before relying on it

Question 20

authority for forensic evidence which corroborates other circumstantial evidence

Answer 20

R v Clapson

Question 21

What must a law practice disclose to a client

Answer 21

• basis on which costs will be calculated
• right to: negotiate a bill, receive a bill, request an itemised bill
• estimate of total legal costs
• details of intervals at which the client will be billed
• in litigation, the range of costs that may be recovered, and, range of costs that a client may be ordered to pay.
• right to progress reports
• details of a person the client may contact to discuss costs
• what avenues are open to the client in the event of a dispute (costs assessment, setting aside of a CA)
• any time limits that apply to taking action
  s 308

Question 22

If a barrister is briefed by a firm, is the barrister obligated to make disclosure to the firm or the firm’s client?

Answer 22

To the firm s 309(2)

Question 23

what additional disclosure is a practice required to make if there is an uplift fee?

Answer 23

basis for calculation of the uplift fee and the reasons why it’s warranted
s 313

Question 24

what is a necessary requirement of the form of disclosure?

Answer 24

that the disclosure be expressed in clear plain language
s 314

Question 25

If an associated third party payer is obligated to pay a client’s bill, what are a law practice’s disclosure requirements?

Answer 25

In writing at the same time disclosure is made to the client
s 318(2)

Question 26

What can a law practice do if a client refuses to provide security for legal costs?

Answer 26

refuse to act, stop acting
s 320

Question 27

When can a law practice begin charging interest on unpaid legal costs?

Answer 27

30 days after a bill has been given or in accordance with the costs agreement.
s 321

Question 28

If a costs agreement contains an offer, what must be included?

Answer 28

it’s an offer to enter into a costs agreement, the offer can be accepted in writing or by other conduct (type of conduct i.e., continuing to instruct)
s 322(4)

Question 29

What must be provided in a conditional costs agreement?

Answer 29

The circumstances that constitute a successful outcome.
It must be in writing ; clear plain language; signed by the client; include client’s right to seek independent legal advice ; contain a cooling off period.
s 323

Question 30

In a matter where instructions have been accepted on a conditional basis, is there a limit to the amount that can be charged for an uplift fee?

Answer 30

Yes, limited to 25% of the legal costs, excluding disbursements, otherwise payable.
s 324(4)

Question 31

How can a costs agreement be enforced?

Answer 31

Same way as any other contract.
s 326

Question 32

How are legal costs, under a void costs agreement, recoverable?

Answer 32

Under the applicable scale of costs or the fair and reasonable value of the legal services
s 327

Question 33

What jurisdiction can set aside a costs agreement and what do they need to be satisfied of before they do?

Answer 33

QCAT or the Supreme Court can set aside a costs agreement if satisfied that it is not fair and reasonable.
s 328

Question 34

When can a law practice commence proceedings to recover costs? Are there any exceptions to the rule?

Answer 34

30 days after a bill is given.
Court or tribunal may make an order sooner if satisfied that a person is about to leave the jurisdiction.
s 329

Question 35

What must a bill include?

Answer 35

the avenues that are open to the client in the event of a dispute, bein, costs assessment or the setting aside of a costs agreement.
Time limits that apply
s 331

Question 36

Who may request an itemised bill and how long does a law practice have to comply with such request?

Answer 36

Any person who is entitled to apply for assessment. 28 days.
s 332

Question 37

What must a law practice do if a client or third party payer has made a costs application?

Answer 37

Participate
s 335(8)(c)

Question 38

If a client has paid your bill but want to dispute the costs paid, what can they do?

Answer 38

You can make an application for costs assessment even if a bill has been paid provided they do so within 12 months of a bill being given or a payment made.
s 332(3)(4)(5).

Question 39

Are there any exceptions to the limitation period of applying for costs assessment?

Answer 39

sophisticated client’s can apply outside the 12 months.
s 335(6)

Question 40

What is the limitation period for costs assessment if a law practice is applying to assess the costs of another law practice?

Answer 40

60 days
s 336(4)

Question 41

If you have given a bill to a client, and they have failed to pay, what enforcement mechanism is available?

Answer 41

apply for costs assessment 30 days after you gave the bill.
s 337

Question 42

What must a costs assessor consider when making an assessment?

Answer 42

whether it was reasonable to carry out the work; whether the work was carried out in a reasonable way; the fairness and reasonableness of legal costs.
s 341

Question 43

When will a costs assessor order that a law practice to whom the costs are payable pay the costs of assessment?

Answer 43

the costs are reduced by 15% or the law practice failed to make disclosure.
s 342

Question 44

What may happen if, on assessment, costs are reduced by 15% or more?

Answer 44

Court may direct the Registrar to refer the matter to the LSC.
s 343