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Does a self-representing solicitor have a fool for a client?

Posted by Philip Cowdery | 06 December 2019 | Dispute Resolution

Since 1885 solicitors who represent themselves in Court have been able to recover professional costs for their time acting for themselves, assuming they “win”.

The entitlement to recover these costs is known as the Chorley exception or a solicitor’s privilege. It is an exception to the usual rule that self-represented litigants are not entitled to costs other than disbursements

On 4 September 2019, the High Court confirmed in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 that the so-called Chorley exception is no longer part of the common law of Australia.

In the High Court, Gordon J posed three questions for determination:

  1. Is the Chorley exception still good law?
  2. Does it extend to barristers?
  3. Does it extend to barristers who have retained a solicitor and counsel to appear for them?

All three questions were answered by the High Court in the negative – no, no and no!

The High Court therefore has abolished the controversial common law rule.

The general rule now applies consistently to solicitors and non-solicitors alike. The time and effort expended by all self-represented litigants is of equal value.

Despite the High Court’s rejection of the Chorley exception, in-house, government and employee lawyers appearing in litigation for their employers remain able to recover costs. Such situations are accepted as falling outside the general rule and being within the scope of costs capable of being awarded under the Civil Procedure Act 2005 (NSW).

All litigants (even where they are themselves solicitors) should consider obtaining independent legal advice and, where possible, legal representation.

So, “yes” a solicitor who represents themselves does indeed have a fool for a client!

 

This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before acting in relation to any specific issues

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