When Should a Certificate for Senior Counsel Rates Be Issued in Defamation Cases?

In defamation cases, the issue of whether a certificate should be issued by a judge to render the unsuccessful party liable for the successful party's costs at senior counsel rates is an important topic of discussion.

The case of Turtur Ao v Connor (No 2) [2021] SADC 151 provides valuable insights into the factors considered by the court when deciding whether to issue such a certificate.

The Test for Certifying an Action Fit for Senior Counsel

The test for determining whether an action should be certified fit for senior counsel was laid down by King CJ in Beasley v Marshall (No 3).

The test revolves around the question of whether a reasonable litigant, at the proper time for the delivery of briefs, would consider it necessary or at least prudent to brief Queen's Counsel / Senior Counsel for the adequate presentation of their case.

Factors for Issuing a Certificate

The court, in Turtur Ao v Connor (No 2), discussed several factors that might be relevant when deciding to certify an action fit for senior counsel. These factors include:

1. The difficulty of the case

2. The complexity of the issues of fact or law

3. Any demands which the case makes for the exercise of special professional skills

The court in Turtur Ao v Connor (No 2) ultimately declined to certify the action fit for senior counsel.

The judge found that the case was not of sufficient complexity to justify the briefing of senior counsel, as there were few witnesses called, and the issues were clearly defined.

Furthermore, the judge noted that the applicant's decision to retain senior counsel might have been prompted by his standing within the community and his concern at the publicity the action was likely to receive.

The court also considered that the respondent had not pleaded the defense of justification or contextual truth, which, if they had been pleaded, might have warranted the retention of senior counsel.

The judge acknowledged that the difference in the parties' respective positions before the trial was modest, and the costs incurred to retain senior counsel likely exceeded that difference.

Key take-aways

• In determining whether to issue a certificate for senior counsel rates, the court considers factors such as the difficulty and complexity of the case, as well as the need for special professional skills.

• It is crucial for legal practitioners to keep these factors in mind when deciding whether to engage senior counsel in a defamation case.

Cases mentioned in this blog post:

• Turtur Ao v Connor (No 2) [2021] SADC 151

• Beasley v Marshall (No 3) (1986) 41 SASR 321

Extensions of Time for Filing Applications for Costs Assessments

As a costs lawyer in Western Australia, I often come across situations where clients seek advice on applications for extensions of time to file applications for costs assessments.

In this blog post, I discuss the general principles involved in such applications, with reference to the recent decision in Watson v Hewett & Lovitt Pty Ltd [2022] WASC 184 and other relevant cases.

Impact of COVID-19 on Extensions of Time

In Watson, the court acknowledged the impact of COVID-19 business interruptions on the practice of law and the possibility that the pandemic may be a valid reason for an extension of time in certain cases.

This is a significant development, as it reflects the reality of the challenges faced by legal practitioners and clients during an unprecedented time.

Legal Framework

The application for an extension of time was governed by sections 295(6) and 295(7) of the Legal Profession Act 2008 (WA).

These sections provide a 12-month limitation period for applications by clients or third party payers, with a possibility for extension in certain circumstances, such as when the client is not a "sophisticated client" and the court determines it is just and fair to grant the extension after considering the delay and the reasons for the delay.

Factors to Consider

The court's discretion in granting extensions of time must take into account the length of the delay and the reasons for the delay.

In Watson, the court considered various factors, including the absence of a costs agreement, confusion arising from the billing practices, overcharging by the law practice, good faith negotiations between the parties, and the impact of COVID-19 restrictions on the proceedings.

The court also noted that the law practice had previously agreed to an extension of time, implying that it had all the necessary information to deal with the assessment of costs.

Relevant Authorities

Two key cases on the proper approach to extensions of time under section 295(7) are Frigger v Murfett Legal Pty Ltd [2012] WASC 447 and Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112.

In Frigger, the court emphasized the importance of adhering to time limits and the potential prejudice to law practices resulting from delays in seeking assessments. However, the court in Watson distinguished the case on its facts, noting that the respondent had initially agreed to an extension of time, reducing the likelihood of prejudice.

Key Take-aways

• Applications for extensions of time to file applications for costs assessments require careful consideration of various factors, including the length and reasons for the delay.

• Courts are generally mindful of the potential impact on law practices and may require a clear case to justify an extension.

• However, in light of the recent decision in Watson, it is apparent that the courts are also willing to take into account the realities of the COVID-19 pandemic and its impact on legal practice.

Cases referred to in this blog post:

• Watson v Hewett & Lovitt Pty Ltd [2022] WASC 184

• Frigger v Murfett Legal Pty Ltd [2012] WASC 447

• Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112

The Future of Legal Work: Leveraging Innovative Tools and Techniques

📣 My Recent CPD Presentation at Legalwise Seminar

I'm delighted to share with you my recent experience presenting at a CPD seminar for Legalwise at the Parmelia Hilton, Perth on 8th March 2023. The subject of my presentation was "How to Use Technologies to Best Increase Efficiency and Gain Valuable Time Saving".

We live in a world where technology is evolving rapidly, and it's essential for us as legal professionals to stay ahead of the curve. In my presentation, I covered various cutting-edge tools and techniques that can significantly enhance our productivity and efficiency, including:
🤖 Artificial Intelligence
🗣️ ChatGPT
🧪 OpenAI Playground
🎤 Dictation
📱 iPads/Tablets
🧠 Mindmaps
📅 Chronologies Made Easy

I believe that embracing these technologies will not only streamline our daily tasks but also improve our decision-making and strategic planning processes. This ultimately allows us to focus on delivering exceptional service to our clients and advancing the legal profession.

I have attached the PowerPoint from my CPD presentation. Feel welcome to download and explore the content.

#legaltech #innovation #efficiency #timesaving #CPDseminar #Legalwise #lawyers

📎 [PowerPoint Presentation: How to Use Technologies to Best Increase Efficiency and Gain Valuable Time Saving]

Navigating the Complex World of Legal Billing: Strategies for Reducing Costs

Legal billing can often be a complex and confusing process, leaving clients feeling frustrated and overwhelmed.

However, with a few simple tips and strategies, you can navigate the world of legal billing with greater ease and confidence, while also reducing costs along the way.

1️⃣ Ask for a detailed costs estimate, including a spreadsheet to see how it was calculated: Before hiring a lawyer, make sure to ask for a detailed Costs Agreement and/or Costs Disclosure that outlines the hourly rate, any additional charges, and the estimated total cost. Sometimes lawyers will have relied on 'gut feel' or a template. Therefore, you should ask for a spreadsheet to minimise the risk you just receive a precedent or template that has not been tailored to your specific case. This will give you a clear understanding of what you can expect to pay and help you avoid any surprises down the line.

2️⃣ Communicate with your lawyer about costs: Regular communication with your lawyer is key to managing costs. Discuss your financial circumstances, budget and goals, and make sure to ask for regular updates on the status of your case and the expenses incurred. This will give you a better understanding of where your money is going and help you to make informed decisions about future expenses. Do not assume your lawyer will know whether you are rich or poor or in-between. If they do not know, they will not be likely to guess. They will just 'chug along', assuming you have the means to pay for any twists and turns in the case.

3️⃣ Consider alternative fee arrangements: Instead of traditional hourly billing, consider alternative fee arrangements such as conditional 'no win no fee' arrangements, fixed fees, or value-based fees. These arrangements can provide greater predictability and stability in terms of costs, and can also incentivise your lawyer to resolve your case more efficiently.

4️⃣ Be mindful of expenses: Expenses can often be a profit-centre for lawyers, where they charge much more than the cost of production. Avoid unnecessary spending on things like photocopying, by negotiating to do any photocopying yourself, with you then delivering the photocopied documents to the lawyers to use.

5️⃣ Challenge unreasonable charges: If you feel that a charge is unreasonable or unjustified, don't be afraid to challenge it. A good lawyer should be willing to explain their charges and work with you to find a mutually acceptable solution.

I frequently act for disgruntled clients who challenge their legal bills. This includes where it progress to a lawyer-client costs assessment at the Supreme Court of Western Australia.

By taking these steps, you can navigate the complex world of legal billing with greater confidence, and reduce costs along the way.

Staying Within Budget: The Consequences of Deviating from Approved Costs in Litigation

The role of cost budgeting in modern litigation has gained significant attention in recent years, in light of the Lord Jackson Report and the subsequent reforms in the UK.

The report, which was published in 2010, emphasized the need for greater transparency and predictability in legal costs.

As a result of the report, the UK introduced a number of measures to promote cost budgeting, including:
1️⃣ mandatory cost budgeting in more complex legal matters, and
2️⃣ the requirement for parties to file cost budgets at various stages of the litigation process.

Once the cost budget is approved by the judge, it serves as a guideline and a benchmark for the parties to follow throughout the litigation process.

The judge will review and approve the budgets at various stages of the litigation.

Deviations from the approved budget may be subject to scrutiny.

If a party exceeds their approved budget without good cause, they may have their costs limited to the budgeted amount in the event that they succeed at trial and costs are awarded to them.

For example, imagine a case where a plaintiff is suing for breach of contract.

The plaintiff's legal team prepared a detailed cost budget, outlining all of the expenses they anticipate incurring over the course of the litigation. After reviewing the budget, the judge approves it as reasonable and proportionate.

Throughout the litigation, the company's lawyers are not diligent in keeping their expenses within the approved budget.

After the trial, the judge awards costs to the plaintiff, but limits the sum to the amount budgeted, rather than the actual expenses incurred.

As a result, the out-of-pocket legal costs exceed the damages awarded for breach of contract, and it was a pointless exercise to have commenced the litigation. ▶ It cost more than was gained.

The process of costs budgeting serves as a powerful incentive for both parties to stay within their budget and to be mindful of the costs of their actions. Any deviation from the approved budget could result in significant financial consequences. Not to mention embarrassment for the lawyers involved.

This serves as a powerful incentive for parties to stay within their budget and to be mindful of the costs of their actions.

Additionally, it also helps to ensure that the litigation remains fair and proportionate, with the costs of the proceedings being proportionate to the amount in dispute.

While these reforms have not yet been implemented in Australia, it seems inevitable cost budgeting will be introduced to our legal system at some stage.

Revolutionizing Legal Costs: The Impact of AI in 2023

In my legal costs work, I see big changes coming with AI during 2023.

Doing this work, I am closely involved in drafting bills of costs and negotiating party-party costs for clients. This includes where I am retained by other lawyers to deal with the costs side of things after a hearing or trial.

With the advent of AI, many of the tasks associated with this work are becoming more efficient and automated, with the use of AI-powered e-billing software.

AI-powered e-billing software can automatically review and analyze legal bills, highlighting any potential overcharges or discrepancies.

This can significantly improve the accuracy and speed of cost assessments, making the process more efficient for both the lawyer and the client.

It can also assist in identifying patterns, trends, and outliers in billing data which can help negotiate costs.

One real-world example of this is the use of AI-powered e-billing software in identifying and flagging overcharges.

AI presents a big opportunity for costs lawyers to adapt and evolve our skills to stay ahead of the curve. Costs disputes have traditionally been maddeningly costly (pardon the pun), driving the ultimate client to despair after having already spent so much on the actual case. This is about to change big-time.

AI-powered e-billing software is the biggest advance in costs for decades and we have only scratched the surface.

Why Clients Should Ask About a Lawyer's Experience Before Hiring

Why Clients Don't Ask Lawyers About Their Experience Before Hiring Them:

When it comes to hiring a lawyer, many clients assume that all lawyers are created equal. They trust in the reputation of the law firm and assume that any lawyer from the firm will be competent.

However, this is not always the case, and clients can be taken by surprise when a relatively junior lawyer, with little experience in the subject matter, is handling their case.

Here are some reasons why this happens to clients:

1. Lack of knowledge or understanding about the legal process: Many clients may not fully understand how the legal process works and may not know what questions to ask.

2. Trust in the law firm's reputation: Clients may trust in the reputation of the law firm and assume that any lawyer from the firm will be competent.

3. A belief that more experienced lawyers will oversee and guide the junior lawyers: Clients may assume that more experienced lawyers will oversee and guide the work of the junior lawyers, so they don't ask about the experience of the specific lawyer handling their case.

4. Lack of time or resources to research and compare different lawyers: Clients may not have the time or resources to research and compare different lawyers or law firms.

5. A belief that all lawyers have the same level of expertise and experience: Clients may assume that all lawyers have the same level of expertise and experience, so they don't ask about the experience of the specific lawyer handling their case.

6. Being referred by someone they trust: Clients may be referred to a law firm by someone they trust, and may not feel the need to ask further questions.

7. Being in a difficult or emotional state: Clients may be in a difficult or emotional state and may not think clearly about the hiring process.

8. Not wanting to appear rude or difficult: Clients may not want to appear rude or difficult by asking too many questions.

9. Cost of hiring a lawyer: Clients may assume that the cheapest option is the best option, and may not ask about the experience of the specific lawyer handling their case.

10. Not wanting to take the time to interview multiple lawyers: Clients may not want to take the time to interview multiple lawyers and compare them.

It's important for clients to understand that not all lawyers have the same level of expertise and experience. Before hiring a lawyer, it's essential to ask about their experience and qualifications and research different options.

Even just to ask their first-point-of-contact at the firm (who is often just a 'white label'), "Who will be my actual lawyer? Will you just be supervising that person? How many of this type of case has that lawyer handled during the last 5 years? Can you send me any published cases in which they acted?"

These are essential questions in an era of high settlement. These days even many independent barristers have never done a trial as lead counsel. Without doing due diligence, clients can be surprised the actual lawyer handling their case might be an "L Plater" in the particular area of the law.

Remember the adage, "... the more you know".

Lawyers of the Future: How AI and AVR are Transforming the Junior Lawyers' Tasks and Costs

As technology continues to advance, the legal industry is also evolving. Artificial Intelligence (AI) and Automatic Voice Recognition (AVR) are becoming increasingly prevalent in the field and are changing the way junior lawyers work.

In this blog post, I take a closer look at how AI and AVR can assist junior lawyers in their daily tasks and how they can free up time for more important and value-adding tasks. Moreover, I will examine how these technology can help to reduce costs and increase access to justice.

To begin, let's take a look at a breakdown of tasks that a typical 40 hour workweek for a junior lawyer doing litigation might look like, with an estimate of how many of those hours could potentially be done by AI, specifically natural language processing models, with the assistance of an operator and how many hours could be done by Automatic Voice Recognition (AVR):

It's important to note that this is just an estimate based on my analysis and not a scientific study.

This analysis is drawn from my common sense analysis and my tech knowledge and insights over the last few months and my many years of being, working with, supervising and employing junior lawyers.

As we can see from this table, AI can assist junior lawyers in tasks such as legal research, document review, and contract drafting.

These tasks are typically time-consuming for junior lawyers, but with the help of AI, they can be done more efficiently and accurately.

This can free up 22 hours a week for more important and value-adding tasks.

AVR can also play a major role in the legal field, by transcribing audio recordings of meetings and hearings, which can be a time-consuming task for junior lawyers, to sit in meetings making notes.

This could save an additional 2 hours a week, allowing junior lawyers to focus on more important and value-adding tasks such as analysis and decision making.

The benefits of AI and AVR go beyond just saving time, they also have the potential to reduce costs and increase access to justice for clients in dramatic ways.

High legal costs can be a barrier to justice for many individuals and businesses.

By using AI to efficiently complete tasks such as legal research, document review, and contract drafting, and AVR for transcribing audio recordings, legal professionals can help to make the legal process more efficient and affordable, which can increase access to justice for many people.

While these technologies are not meant to replace human judgement, they are designed to assist and make the legal process more efficient. This means that junior lawyers will have more time to focus on higher-level tasks and provide better service to clients.

As the legal industry continues to evolve, it's important for junior lawyers to be aware of the advancements in technology and to embrace the opportunities they provide.

With AI and AVR, we can work smarter, not harder, and provide even better service to our clients while also helping to reduce costs and increase access to justice.

It's an exciting time for the legal industry and I can't wait to see how these technologies will continue to shape and improve the way we work.

Advantages of Hiring a Specialist Lawyer

As my career progressed, I became a specialist in 3 fields:

1. defamation
2. guardianship in SAT, and
3. costs.

It was like gravity pulled me towards these 3 over 19 years as a lawyer, after also trying other things.

Hiring a specialist lawyer brings numerous benefits.

Here are a few:

Expertise: A specialist lawyer has in-depth knowledge and experience in a specific area of law. This means that they are better equipped to handle complex legal issues and provide accurate advice.

Efficiency: Because a specialist lawyer focuses on a specific area of law, they are likely to have a better understanding of the relevant laws and regulations, as well as the specific processes and procedures involved. This can lead to a more efficient resolution of your legal matter.

Cost-effectiveness: While it may seem counterintuitive, hiring a specialist lawyer can often be more cost-effective in the long run. Because they have a deeper understanding of the relevant laws and processes, they may be able to resolve your legal matter more quickly and efficiently, saving you time and money.

Personalized service: A specialist lawyer is likely to have a better understanding of your unique needs and concerns, and will be able to provide more tailored and personalized legal representation.

Overall, hiring a specialist lawyer can bring a level of expertise and efficiency to your legal matters that a generalist lawyer may not be able to provide. While it may cost more upfront to hire a specialist, the benefits can far outweigh the costs in the long run.

An Australian first costs decision: Security for costs knocked back in setting-aside application

I acted for the Plaintiff in Steven Pugh Investments Pty Ltd v Mossensons Pty Ltd [2020] WASC 225. The decision is here.

The overall case involved my client seeking to set aside a costs agreement he signed with a previous Law Practice.

This particular decision was about the Defendant Law Practice’s application for security for costs.

This was a novel application in Australian legal history.

There were no previous published decisions where a Law Practice opposing a setting-aside application had applied for security for costs.

What is a Security for Costs application?

In litigation, the purpose of an order for security for costs is to protect a defendant or respondent in whose favour the court has made an order for costs from having that order wholly frustrated by the inability of the plaintiff or appellant to satisfy it. [1]

In the context of a setting-aside of costs agreement application, the Law Practice submitted that the Court should order its former client (the Plaintiff) to provide security in the form of a payment of money into Court as a pre-condition for the application being progressed to a final hearing.

Public Interest

Master Sanderson, relied on the case of Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57, in which Edelman J pointed to ‘public interest’ as a factor in deciding whether to exercise the court’s discretion in cases such as these.

Master Sanderson ruled that there could be no doubt that when a party seeks to set aside a costs agreement with a solicitor, it is in the public interest that the application ought to be heard.

Application of the Legal Profession Act

I relied on the Legal Profession Act 2008 (WA) in order to bring the setting aside application.

Section 260 of the Act details what disclosures of costs must be made to clients, and section 262 dictates how and when disclosure must be made.

If these sections are not complied with, then a client may apply under section 288 for the costs agreement to be set aside.

Decision

The Supreme Court dismissed the application for security of costs.

Master Sanderson stated that an order shutting out a client from attempting to establish a failure of statutory/legal obligations in a client/solicitor relationship ran contrary to the public interest and as such should not be allowed.

[1] Jodast Pty Ltd v A & J Blattner Pty Ltd (1991) 104 ALR 248  at 255 per Hill J, Fed C of A; Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 ; BC200105623 at [52] per Einstein J; Talwar v Sharma [2018] FCCA 483 ; BC201802738 at [6] per Judge Obradovic.