Did you know that self-represented litigants typically are not able to claim for their costs, even if successful, except for disbursements such as court filing fees subpoena and expert witness appearances?
That’s a real problem, for several reasons:
Firstly you will not be an expert and likely to get the best result yourself. Court rules and procedures are complex and often difficult even for experienced practitioners.
There is a high probability you will not be successful
Don’t forget the adage he who has himself for his own lawyer is awful – that statement is for very good reason, we are just too close to our own matters to see it clearly. You may not like to believe this but you will always get better service from a completely objective lawyer.
Time you spend Trying to represent yourself, will only take away from your ability to earn your regular income, or care for your loved ones.
The seminal precedent
The Chorley Exception, first decided in London Scottish Benefit Society v Chorley (1884) 13 QBD 872, held that where a self-represented litigant is in fact a qualified solicitor, they are entitled to claim professional costs for legal work they performed themselves. The same does not apply for regular self litigants in ordinary circumstances.
That proposition holds because solicitor costs are quantifiable by courts according to scale costs, whereas costs claimed by a layperson for representing themselves for time spent performing legal work are amorphous and insusceptible to precise calculation.
Recent Australian cases
In Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150, the New South Wales Court of Appeal considered a claim for costs by a barrister and the Chorley Exception was held to extend to barristers as well.
Once previously, the High Court in Cachia v Hanes [1994] HCA 14 had cast doubt on the exception, but the exception remained.
Other appeal courts have held that the exception applies and that only the High Court could alter this: Waller v Freehills [2009] FCAFC 89.
The High Court decision in Cachia v Hanes was recently considered on Special Leave in Coshott v Spencer & Ors [2018] HCATrans 81 (10 May 2018).
The current position of the law
The exception remains. Talk to Merlo Law today to assist you with your matter.
This publication considers legal and technical issues in a general way. It is not intended to be legal advice. Any legal advice is qualified on the basis that the reader should immediately confirm the information relied upon with Merlo Law. We look forward to being of assistance.
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