The successful party is normally entitled to costs. These two instances demonstrate that a tribunal may in the exercising of its discretion, order a successful party to pay the unsuccessful parties costs wholly or partly, if the successful party raises issues below the belt or improperly.
The instance of Vernademonstrates how a tribunal under its discretion ordered the successful party to pay the costs of the losing party. The test justice found in favor of New India Insurance ( the suspect ) . But the suspect had refused to inform the complainant why it was declining to indemnify it and as a consequence it was held that a costs order be made against the defendant.The suspect sought leave to appeal on the costs issue.Kaye J held that the suspect failed to unwrap the grounds for non settling the claim and it was non until the 2nd twenty-four hours of the hearing that the defense mechanism relied on the defences.As a consequence the suspect “ brought about judicial proceeding which might hold been rendered unneeded had it disclosed its existent ground for keep backing colony ” so costs were non awarded to the successful suspect.
I wholly agree with the determination of Kaye J because the suspect ‘s advocate unnecessarily increased costs in the affair by widening proceedings. I besides believe that advocate should pay the costs and non their client because the defense mechanism advocate was responsible for neglecting to unwrap grounds and amending their defense mechanism at test. Furthermore the suspect ‘s actions non merely wasted the complainant ‘s clip and money but besides the tribunals clip and money so they should be held accountable.
The instance of Capolingua besides shows how a tribunal under its discretion ordered a successful suspect to pay the costs of the complainant. The suspect failed to co-operate at a mediation conference. But most significantly the suspects did non decently place the issues that it relied on for success until the last twenty-four hours of test, when they amended their defense mechanism pleading. As a consequence the instance went on for four yearss when it could hold been settled within two yearss.
The suspects were successful at test. But it was held that there should be no order for costs because the suspects advocate ; failed to follow with the usual orders at mediation, and led unneeded grounds doing the instance to travel longer than it should hold. Besides the complainants were entitled to believe that they would be successful until the defense mechanism was amended on the last twenty-four hours of test.
I agree with the tribunals concluding determination. The suspects advocate at mediation had the chance to complete the instance expeditiously, cut downing its length and cost but did non. Therefore the suspects advocate should be held accountable for the inordinate costs caused by their actions, but non their client, because it was the advocate ‘s actions that caused the hold and inordinate costs and non their client.
Part ( B )
Recently there have been allegations of legal practicians soaking clients, in peculiar those with limited English accomplishments. One illustration being a ailment by a Chinese man of affairs saying that he did non have a measure, signed a papers incorporating clean infinites, and non cognizing that he would be paying $ 250,000 in legal fees go forthing him with $ 50,000 after the concluding colony. In another affair a client complained that they were charged over $ 30,000 for a affair of retrieving $ 4000 in unpaid rewards.
These types of ailments suggest that there should be reform on how legal practicians charge clients. In respects to these issues I shall research what Torahs are already in topographic point and will do recommendations for reforms by outlining new subdivisions.
Presently the statute law that relates to costs is as follows:
Section 60 of the Civil Procedure Act 2005 ( NSW ) requires that the “ processs and their costs be measured against the complexness of the issues, the value of the capable affair and the nature of the claim involved ” .
Section 99 of the Civil Procedure Act 2005 ( NSW ) provides that if it appears to the tribunal unneeded costs are incurred by a legal practician, after giving the legal practician an chance to be heard, the tribunal may forbid an order for costs in the proceedings ; direct the legal practician to refund their client or to indemnify any party.
The Legal Profession Act 2004 ( NSW ) controls the appraisal of costs[ 20 ]. If a client wishes to contend a measure of costs they may use to the Officer of the Attorney-General ‘s Department ( Manager Costs Assessment ) for a reappraisal of costs under s353,[ 21 ]which is so referred to a cost assessor under s357.[ 22 ]The cost assessor should so see whether it was sensible to be charged the sum in difference under s354.[ 23 ]The guidelines for finding costs are set out in s364.[ 24 ]If the cost assessor finds that measure of costs is unreasonable or unjust, under s367 the cost assessor may replace the disputed sums with more appropriate sums.[ 25 ]
Due to troubles faced by vulnerable clients being overcharged and exploited I would foremost urge that reform take topographic point for people that have troubles with the English linguistic communication. I suggest that the undermentioned statute law be implemented:[ 26 ]
sXX ( a ) All legal practicians should take sensible stairss to guarantee all clients understand the information revealed to them.
( B ) In peculiar clients from linguistically and culturally diverse backgrounds should non be disadvantaged.
( degree Celsius ) All legal practicians should do certain whether a client is more comfy and familiar with another linguistic communication, and if the clients understands communicating better in languages other than English ;
( two ) Bills, Letters and other revelations are to be prepared both in English and the non-english linguistic communication that the client understands.
I to boot believe that reform should take topographic point for the issue of costs revelation. Fines should be issued for soaking legal practicians.[ 27 ]Publishing mulcts can be a great hindrance for soaking legal practicians. I suggest that the undermentioned statute law be implemented:[ 28 ]
sYY ( a ) To assist help clients make sensible determinations sing the behavior of their affair, legal practicians must every bit shortly as possible inform clients sufficiently about all estimated costs of their affair and the method used for ciphering the estimated costs.
( B ) Any alterations made to a antecedently disclosed estimated cost or measure should be brought to the attending of the client every bit shortly as possible.
( degree Celsius ) Bills and costs revelations must be presented in a clear, concise and accessible format.
( vitamin D ) All clients must be informed that they have a right to dispute or negociate a costs understanding.
sYYY ( a ) Legal practicians must merely bear down sensible, just and proportionate costs.
( B ) Courts and courts have the power to put aside a costs understanding which are non proportionate, sensible or just.
( degree Celsius ) Legal practicians must non work in a mode which unnecessarily additions costs and must do sensible attempts to understate hold in legal procedures.
( vitamin D ) Any Legal Practitioner found by a tribunal or tribunal charging inordinate costs without sensible alibi will confront heavy mulcts and perchance lose their practicing certification.
Furthermore clients should be provided with periodic and itemised measures.[ 29 ]A prohibition should besides be placed on practicians seeking clients ‘ governments to keep back legal costs from colony sums.[ 30 ]
I believe the above reform proposals should be adopted because it can halt and discourage legal practicians from soaking clients, but more significantly there are no Torahs or regulations presently in topographic point that cover the proposed reform statute law mentioned earlier. I justify the proposals because the Standing Committee of the Attorney General recognised the demand for reform in the countries highlighted earlier.