costs disclosure and assessment Flashcards
the two avenues available to a client in a dispute over costs? what section
setting aside a costs agreement (by application)
costs assessment
s 331
when should disclosure be made to a client
In writing as soon as reasonably practicable after instructions have been taken s 310
what are 6 common exceptions to costs disclosure?
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
additional disclosure required by a law practice in a litigious matter
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
what should a law practice do if there is a substantial change to something in the CD? what section
make further disclosure in writing as soon as they are aware of the change s 315 (ongoing obligation to disclose)
What 4 things may happen if you fail to disclose costs
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
what must you give a client if they request a progress report?
Are there any exceptions to progress reports?
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
On what basis are legal costs recoverable (3 things)
under a valid costs agreement
according to the fair and reasonable value of the services provided
under the applicable scale of costs
s 319
When can a law practice start charging interest on unpaid legal costs?
30 days after the bill becomes payable provided the costs agreement says interest is payable
If a costs agreement includes a written offer, what 3 things must it state?
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
what 4 factors are considered in deciding whether to set aside a costs agreement that is alleged is not fair and reasonable?
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
how can a costs agreement be set aside?
if by application to QCAT it’s decided that costs are not fair and reasonable.
S 328
when will a court order costs are payable before 30 days after bill is given?
satisfied the person may leave the jurisdiction
S 329(2)
what are the 3 mandatory requirements of a bill?
must be signed
include a statement about costs assessment and setting aside costs agreements
time limits they have to take action
S 331
how long does a client have to make an application about costs assessment?
12 months unless the costs assessor considers reasons for the delay
mandatory requirement of a legal practice subject to a costs assessment
must participate
not start recovery action until assessment is complete
who pays the costs of costs assessment?
the law practice if costs are reduced by 15%
s 342
the law practice if they failed to make disclosure
When can a costs assessor refer a matter to the commissioner?
costs are reduced by 15% or more
costs assessor believes costs were grossly excessive
costs assessment raises issue of PMC
What is the purpose of a trial judge giving either a Domican, Longman, McKinney or Jailyard direction
The purpose os to urge the jury to seek some corroborative evidence before relying on it
authority for forensic evidence which corroborates other circumstantial evidence
R v Clapson
What must a law practice disclose to a client
- 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
If a barrister is briefed by a firm, is the barrister obligated to make disclosure to the firm or the firm’s client?
To the firm s 309(2)
what additional disclosure is a practice required to make if there is an uplift fee?
basis for calculation of the uplift fee and the reasons why it’s warranted
s 313
what is a necessary requirement of the form of disclosure?
that the disclosure be expressed in clear plain language
s 314
If an associated third party payer is obligated to pay a client’s bill, what are a law practice’s disclosure requirements?
In writing at the same time disclosure is made to the client
s 318(2)
What can a law practice do if a client refuses to provide security for legal costs?
refuse to act, stop acting
s 320
When can a law practice begin charging interest on unpaid legal costs?
30 days after a bill has been given or in accordance with the costs agreement.
s 321
If a costs agreement contains an offer, what must be included?
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)
What must be provided in a conditional costs agreement?
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
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?
Yes, limited to 25% of the legal costs, excluding disbursements, otherwise payable.
s 324(4)
How can a costs agreement be enforced?
Same way as any other contract.
s 326
How are legal costs, under a void costs agreement, recoverable?
Under the applicable scale of costs or the fair and reasonable value of the legal services
s 327
What jurisdiction can set aside a costs agreement and what do they need to be satisfied of before they do?
QCAT or the Supreme Court can set aside a costs agreement if satisfied that it is not fair and reasonable.
s 328
When can a law practice commence proceedings to recover costs? Are there any exceptions to the rule?
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
What must a bill include?
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
Who may request an itemised bill and how long does a law practice have to comply with such request?
Any person who is entitled to apply for assessment. 28 days.
s 332
What must a law practice do if a client or third party payer has made a costs application?
Participate
s 335(8)(c)
If a client has paid your bill but want to dispute the costs paid, what can they do?
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).
Are there any exceptions to the limitation period of applying for costs assessment?
sophisticated client’s can apply outside the 12 months.
s 335(6)
What is the limitation period for costs assessment if a law practice is applying to assess the costs of another law practice?
60 days
s 336(4)
If you have given a bill to a client, and they have failed to pay, what enforcement mechanism is available?
apply for costs assessment 30 days after you gave the bill.
s 337
What must a costs assessor consider when making an assessment?
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
When will a costs assessor order that a law practice to whom the costs are payable pay the costs of assessment?
the costs are reduced by 15% or the law practice failed to make disclosure.
s 342
What may happen if, on assessment, costs are reduced by 15% or more?
Court may direct the Registrar to refer the matter to the LSC.
s 343
