NSWCA: Chorley Exception May Extend to Barristers
In the matter of Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150, the New South Wales Court of Appeal was required to consider whether the ‘Chorley exception’ applies to barristers as well as to solicitors. The Chorley exception is an exception to the well-established rule that a self-represented litigant is not entitled to professional costs for acting for him or herself in legal proceedings and provides that self-represented litigants who are solicitors are entitled to recover professional costs for work they have undertaken in legal proceedings.
In doing so, the court was also required to consider whether, if the exception did apply, it would extend to include circumstances in which barristers had engaged legal representation to act on their behalf in the relevant proceeding.
Background
The case involved Janet Pentelow, a barrister who brought proceedings in both the Local Court and Supreme Court of New South Wales, seeking to recover unpaid fees following a dispute with her client (who had been her instructing solicitors). Although the Supreme Court awarded costs in Ms Pentelow’s favour in respect of both proceedings, the cost assessor later rejected in its entirety that part of the costs claimed by Ms Pentelow for preliminary work that she had undertaken herself prior to engaging legal representation, such as drafting the originating process and her affidavit of evidence.
During a subsequent review by the Costs Review Panel, Ms Pentelow’s claim for costs relating to work that she had undertaken was again disallowed on the on the basis that Ms Pentelow was not self-represented as she was represented by solicitors and senior counsel in the prior proceedings, and on the basis that the Chorley exception did not extend to barristers. Ms Pentelow subsequently appealed to the District Court of New South Wales, however was unsuccessful on the same basis and thus sought judicial review of the decision pursuant to s69 of the Supreme Court Act 1970 (NSW).
Here, the New South Wales Court of Appeal was required to consider the following grounds:
- Whether the Chorley exception extends to barristers;
- Whether Ms Pentelow was a self-represented litigant; and
- Whether the Chorley exception applied to Pentelow in circumstances where she engaged legal representatives but also undertook legal work herself.
Whether the Chorley exception applies to barristers
In contending that the Chorley exception applies to self-represented barristers, Ms Pentelow submitted that the court must have regard to the underlying rationale for the rule. In doing so, Ms Pentelow contended that as a barrister’s costs are able to be quantified by the same processes by which a solicitor’s costs are, they too should fall within the ambit of the Chorley exception.
Beazley ACJ (with whom Macfarlan JA agreed) accepted this submission, ultimately concluding that as there was no binding authority, it was appropriate to consider the rationale for the exception. Ultimately, her Honour determined that the Chorley exception extended to the work undertaken by a self-represented barrister, so long as that work was not expressly proscribed by the Bar Rules. Significant in Beazley ACJ’s reasoning was the fact that there was now significant overlap in the work undertaken by both solicitors and barristers and the costs of each may be assessed under the same costs assessment processes. It is important to note that the costs of solicitors and barristers are also assessed under the same costs assessment processes in Queensland and other jurisdictions in Australia, as well as New South Wales.
Whether Ms Pentelow was a self-represented litigant
The court identified that in order to be entitled to relief by way of judicial review, the applicant must establish error of law or jurisdictional error because a question of fact was not amenable to judicial review. In doing so, it held that this ground failed on the basis that it sought to challenge a finding of fact and thus, was not amenable to judicial review.
Whether the Chorley exception applied to Ms Pentelow in circumstances where she engaged legal representatives but also undertook legal work herself
In determining the final ground, Beazley ACJ (with whom Macfarlan JA agreed) concluded that despite having engaged legal representation, Ms Pentelow was entitled to recover costs for legal work she undertook herself. Her Honour held that this issue raised a question of mixed fact and law, which was amenable to judicial review. Ultimately, her Honour concluded that Ms Pentelow’s entitlement to recover specific items of costs claimed was a matter for costs assessment and the matter was remitted to the District Court of New South Wales and the Costs Review Panel for that purpose.
Conclusion
This case highlights an interesting facet of law in that it was found that the costs of self-represented barristers undertaking legal work not otherwise proscribed by the Bar Rules fall within the Chorley exception. Given the criticism that the Chorley exception and its underlying rationale has drawn in recent times, it will be interesting to note how the High Court will handle such matters that emerge in future cases.
